### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT AUGUST 5, 2003 THOMAS K. KAHN CLERK [PUBLISH] IN THE UNITED STAT

ES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

____________________________

No. 02-12234

____________________________ D.C. Docket No. 00-06312-CR-NCR UNITED STATES OF AMERICA, Respondent-Appellee,

versus JERMAINE C. WILLIAMS , a.k.a. Jerm

aine William

s, Petitioner-Appel lant.

__________________________ Appeal from t

he United States D

istrict Court Southern District of Florida

__________________________ (August 5, 2003) Before TJOFL

AT, ANDER

SON and CUDA

HY*, Circuit Judg

es.

________________ * Honorable Richard D. Cudahy, United States Circuit Judge for the Seventh Circuit, sitting by designation.1 Federal law provides, Whoever in any

way or deg

ree obstructs, de

lays, or af fects commerce or the

movement of any

article or commod

ity in commerce, by

robbery or

extortion or attempt

s or conspires so to do , or commits or threatens physical violence to any person or property in

furtherance of

a plan or purpose

to do anything

in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both. 18 U.S.C. § 1951(a) (1994) (emphasis added). The statute defines robbery a s “the unlawful taking or obtaini

ng of personal p

roperty fr om the person or in t

he presence of

another, agai

nst his will, by mean

s of actual or thr

eatened force

, or violence, or

fear of injury

, immediate or futu

re, to his person or property, or property in his custody or possession . . . .” Id. § 1951(b)(1).

2 TJOFLAT, Circuit Judge:

I. STATEMENT OF THE C ASE A. Factual Background On October 20, 2000, Jermaine Williams and Lowe n Espinueva attempted to rob an armored car in Coral Springs, Florida. As the armore d car’s drivers (Fran k Gran

ja and Eshama n Ruiz ) were r estoc king an ATM with c ash, Wi lliams and Espinueva drove u

p and started shooting a

t them. Espine

uva used a 12-gauge shotgun, while Williams was firing a 9-millimete r pistol; both guards were seriously wounded. When the guards returned fire, Williams and E spinueva fled without stealing any money. Williams and

Espinueva were l

ater arrested a

nd indicted on three counts: conspiring to obstruct interstate commerce through robbery (Count I), 1 attempting2 Id. § 1951(a) (establi shing pen alties fo r “[w]hoev

er . . . att empts . . . [t

o] obstruc

t[], delay[], or affect[] commerce or the movement of any article or commodity in commerce, by robbery or extortion”).

3 Federal law pr

ovides, “[A]ny

person who, durin

g and in relation

to any [fede

ral] crime of violence . . . us

es or carries a

firearm, or who,

in furtherance

of any such

crime, possesses

a firearm, shall, in addition to the punishment provided for such crime of violence . . . if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 y ears.” Id. § 924(c)(1)(A)(iii) (1994).

4 The court also imposed a $300 special assessment against Williams, and ordered restitution of $404,080.29.

5 See supra

note 3. 3 to obstruct interstate commerce through robbery (Count II), 2 and discharging a firearm in connection with a crime of violence (Count III). 3 Williams ple d guilty to all three counts and was sentenced to 200 months in prison by the United States District Court for the Southern District of Florida. 4 This includes 80 m onths for Counts I and II, and a mandatory consecutive 120-month sentence for Count III. 5 This appeal concerns Williams’s prison sentence fo r Counts I and II.

B. Williams’s Sentence Under the sentenci

ng guidelines, the var

ious charges of whic

h a defendant is convicted are sor

ted into different “

groups” based on the ru

les set forth in United States Sentenc ing Commission, Guidelines Manual , § 3D (Nov. 2002). In general, relate

d charges are suppose

d to be grouped together

, while charges a

rising from separate incidents are supposed to be grouped apart from each other. “I n6 If two or more offenses are g

rouped separat

ely, each group is assign

ed an offense le

vel, and these individua

l offense levels

will be considere

d in conjunction with

each other to determine the de

fendant’s “comb

ined offense lev

el.” This combined

offense level w

ill typically be much higher than any of the groups’ individual offense levels. If, in contra

st, multiple offens

es are groupe

d together, tha

t group is assign

ed an offense level based only on the most serious charge it contains. The other offense s in that group are essentially ignored and do not cause the defendant to have a higher “combined offense level.” Thus, it is to a defendant’s advantage to have as many char ges as possible squeezed into as few groups as possible.

7 The other circumstances under which multiple counts may be groupe d together are not pertinent to the instant case. 4 essence, counts tha

t are grouped togethe

r are treated as

constituting a single offense for purposes of the guidelines.” Id

. , ch.3, pt.D, introducto ry cmt. (2002). Each group is assigne

d a numerical “

offense level,” which is determ ined by the most serious offense in that group. See id. § 3D1.3(a). Ba sed on the number

of groups the defendant h

as, as well as ea

ch group’s offense

level, the defend

ant is assigned a “combined offens e level,” which is used to determine his senten ce. See id. § 3D1.4. As a result of this system, a defendant will receive a much higher sentence if two crimes are grouped separately than if they ar e grouped together. 6 Section 3D1.2 of th

e Sentencing Guide

lines states that m

ultiple offenses m

ay be grouped together only

“[w]hen counts involve the sam e victim and the

same act or transaction,” U. S.S.G. § 3D1. 2(a), or “[ w]hen counts involv

e the same vict

im and two or more ac

ts or transactions c onnected by a com mon crimin

al objective or constituting part of a common scheme or plan,” id. § 3D1.2(b). 75

The Pre-Sent ence Inves tigation Report (“PSI”) completed by Wil liams’s probation officer recommended that Counts I and II be assessed separately under the guidelines rathe

r than grouped togethe

r. The report c

laimed, “ Counts One and Two represent se

parate harms

and are specifica

lly excluded fr

om grouping rules in § 3D1.2. . . . Group One will re present the harm

caused to Frank Gr

anja and Group Two will represent the harm caused to Eshaman Ruiz.” Williams filed an objection to the report, stating “Counts One and Two of the indictment, which charge a conspiracy to commit a robbery and an attempt to commit a robbery, are part of a single cri

minal episode an

d should be grouped togeth er, pursuant to § 3D1.2(b).” The probation officer again declined to group Counts I and II together, emphasizing tha

t “[t]he cou

nts cannot be grouped und er either § 3D1.2 (a) or (b) since neit her count i nvolved t he same ‘victi m.’ ” Williams then filed an objection to the amended report with the district court, arguing y

et again that Counts I

and II (conspirac

y to comm

it robbery and the attempted robbery) shou ld have been groupe d together. The district court , without explanation,

overruled Willia

ms’s objec

tion and adopted the

recomme ndation of the PSI,

putting each charge

in a separate group in calculating Williams ’s sente nce. Bec ause Co unts I a nd II wer e group ed sepa rately, Williams’ s sentencing range f or these counts was 7 8-97 months; the j udge8 Because the statute is silent as to the standard of review for “pure” questions of law, we

revi ew t hem und er ou r cus tom ary de novo standard. See, e.g. , United States v. Calderon , 127 F.3d 1314, 1339 (11th Cir. 1997) ( “In reviewing challenges to the application of U.S.S.G. § 3B1.3, we review the legal meaning of the term ‘special skills’ de novo .”) (internal quotations omitted); United States v. Brenson , 104 F.3d 1267, 1287 (11th Cir. 1997) (“[T]he question of whether conduct by a grand juror justifies the ‘abuse of trust’ enhancement is a legal conclusion requiring a de novo review.”). 6 sentenced him to 80 months (plus a mandatory consecutive 120-month sentence for Count III). Had Counts I and II been grouped together

, Williams

would be eligible for a sentence of between 63-78 months, in addition to his mandatory sentence for Count III

.

II. STANDARD OF REVIEW Before turning to the

substance of Will

iams’s clai

ms, it is first

necessary to determine the

appropriate standa

rd of review. F ederal law state s, “The cour t of appeals . . . shall accept the findings of fact of the district court unless they are clearly erroneous and, . . . shall give due deference to the district court's application of the gui

delines to the facts .” 18 U.S.C. § 3742(e). Our pr ecedent clearly follow

s the first part of t

his statute, requir

ing us to review distr

ict courts’ factual findings unde

r a “clear e

rror” (or “c

learly errone

ous”) standard. 8 See United States v. M

aung , 267 F.3d 1113, 1118 ( 11th Cir. 2001) (“ When a defendant challenge s the district court’ s application of the se ntencing guidelines, we review the district co urt’s underlying findi ngs of fact for clear error . . . .”).7

For example,

“[a] distr ict judge’s attr

ibution of drugs to a par

ticular defendant under the Sentencing Guidelines is subject to clearly erroneous review.” United States v. Alred , 144 F.3d 1405, 1416 ( 11th Cir. 1998). S imilarly, “[p]ossessio n of a firearm f

or sentencing purpose s is a factual findin g . . . reviewe

d under a clearly erroneous standard.” United States v. Geffrard , 87 F.3d 448, 452 (11 th Cir. 1996). The proper standar

d of review for a

district court’s

application of the sentencing guidelines to the facts of a particular case, also referred to as “mixed questions of fact and

law” involving the gui

delines, is muc

h less settled. Sec

tion 3742's “due defe

rence” language ha

s proven to be a source

of great ambig

uity within this circuit,

and our caselaw is , to say the lea st, muddled. S

ubpart A begins by explaining the v

arious approaches t

his circuit has take

n in considering this matter. Subp art B goes on to explai n how “due defe

rence” should not be interpreted as est

ablishing a fixed quant

um of review,

but instead requires

varying degrees of defer

ence to the lower c

ourts based on the pre

cise nature of the guideline provision at i ssue. Subpart C ap plies these principle s to determine t he appropriate stand ard of review in the ins tant case.

A. Prior Interpreta

tions of § 3742(e)’ s “Due Defe rence” Language 18 U.S

. C. § 3742(e) requires the court of appeals to accord “due deference”8

to a district court’ s ruling on how the sent encing guidelines should be applied to the facts before i

t. Our preceden

ts have not implem

ented this provision in a wholly consisten

t manner. T

his Subpart attem

pts to explain our circ

uit’s various interpretations o f the proper standard of review for guidelin es cases.

1. Ignoring 18 U.S.C. § 3742(e) - We have chara cterized “qu estion[s ] about whether a par

ticular guideline ap

plies to a given set of

facts” both as questions of law, see United States v. Shriver , 967 F.2d 572, 574 (11th Cir. 1992), and (more appropriately) as mixed q uestions of fact and law, see United States v. Scroggins , 880 F.2d 1204, 120 6 n.5 (11th Cir. 1989 ). In general, de novo review is appropriate for bo th types of issues. See, e.g. , Parker v. Sec’ y for the Dep’ t of Corr. , 331 F.3d 764, 765 (1 1th Cir. 2003) (“ We review the district court’s findings of fact for clear error and its legal conclusions and mixed questions of law and fact de novo.”). It is possible that pri

or panels simply

applied these gener

al principles and,

as a resu lt, ove rlooke d § 374 2(e) and its “due deferen ce” stan dard. Co nseque ntly, many of our

cases simply

state, “Thi s court reviews the district court’s

sentencing hearing findings of f

act for clear er

ror and its applicat

ion of the sentencing guidelines to those fa

cts de novo .” United States v. Renick , 273 F.3d 1009, 10219

(11th Cir. 2001); accord United States v. D e La Mata , 266 F.3d 1275, 1302 ( 11th Cir. 2001); Maung , 267 F.3d at 1118; United States v. J amieson , 202 F.3d 1293, 1295 (11th Cir. 2000); United States v. G allo , 195 F.3d 1278, 1280 (11th Cir. 1999); United States v. Herrera , 931 F.2d 761, 762 (1 1th Cir. 1991). E ven if, in these cases, § 3742' s due deference st andard was interpr

eted to mean de novo review, it is both confusing and improper for a court of appeals, or the parties appearing before i

t, to fail to cite th

is statute (or a ca

se interpreting this statute) in a sentencing guid elines appeal. By its very terms, § 3742 clearly applies to sentencing gui delines cases. Moreover, we reject the notion that Congress intended § 3742's due deference standard to leave undi sturbed our general de novo standard for reviewing issues concerning the application of the law to pa rticular sets of f

acts. This “

due deference” langu

age was undoubtedly

intended to require,

at least in some

cases, greater respect for district court holdings than is traditionally accorded under de

novo review. See United States v. M alone , 78 F.3d 518, 520-21 n.2 (11th Cir. 1996) (“The ‘due deference’ standard in 18 U.S.C.§ 3742 ‘serves as an additional caution against overl

y intense judic

ial review.’ ” (quoting United States v. MejiaOrosco , 868 F.2d 807, 808 (5 th Cir. 1989))).10

2. “Due deference” always m eans de novo review - Many of our ca ses, despite quoting the due d eference standar

d from § 3742(e) , nevertheless pro claim in sweeping term

s that “we re

view the district court’s applicatio n of the Sentencing Guideli

nes de novo

. ” United States v. O rtiz , 318 F.3d 1030, 1036 (11th Cir. 2003) (in

ternal citation om

itted); see also United States v. H all , 312 F.3d 1250, 1260 n.12 ( 11th Cir. 2002); United States v. S ingh , 291 F.3d 756, 763 (11th Cir. 2002); United States v. S mith , 231 F.2d 800, 806-0 7 (11th Cir. 2000). As noted above, we

refuse to interpre

t the phrase “du

e deference” as

used in § 3742 as establishing a bl

anket de novo standard. While, for reasons explained later in this opini on, due deferen ce may have requir ed some p anels t o apply de novo review in certain cases (given their facts and the particular guidelines at issue), those cases should not be read as establishing

a general propositio

n that due deference alwa

ys means de novo

.

3. Due deference always means clear er ror review- At least one of ou r cases has also stra

yed to the other e

xtreme, holdin

g “[W]e review for clea

r error the district judge’s application of the guidelines to the facts of the case.” Calderon , 127 F.3d at 1339. We also arguably equated the due deference and clear error standards in United States v. D e Varon , 175 F.3d 930 (11th Cir. 1999) (en11

banc), where w

e held, “[A

] district court’ s determinatio n of a defendant’ s role in the offens e is a findi ng of fact t o be reviewe d only for cle ar error. . . . [It is] a fundamentally factual determination entitled to due deference and not a legal conclusion subject t

o de novo review.” Id. at 937-38. These q uotes might suggest that the clear er

ror and due defere

nce standards wer

e interchangeable

for reviewing a district court’s findings of fa ct. It is clearly i

nconsistent with the o

verwhelming w

eight of the precede

nts discussed above to conclude that due deference always means clear error, or that clear error i s always the ap propriate standard for reviewin g a distric t court’s application of the guidelines to a particular case. Moreover, such conclusions are contrary to t he clear tex t of § 3742 , which stat es that alt hough a di strict cou rt’s factual determ

inations should be revie

wed under a “c

lear error” sta

ndard, its application of the la

w should be given only

“due deferen

ce.” This delibe

rate variation in terminology within the same sentence of a statute suggests that Congress did not interpret the two terms as be ing equivalent. See United States v. Bean , 531 U.S. 71, 1 23 S. Ct. 584, 587 n. 4, 154 L. Ed. 2d 4 83, 489 n.4 (2002) (“The use of different words w ithin related statut

es generally im

plies that differe

nt meanings were intended.” (q uoting 2A N. Singer, Sutherland on Statut es and Statutory Constr

uction § 46.06, at 194 (6th ed. 2000))). While clear error review9 This is essentially the approach for which the Government advocated in the instant ca se. See Brief for the United States , at *8 (“This Court reviews the district court’s . . . application of the sentencing

guidelines de novo . Furthermore, this Court reviews t

he district court’ s refusal to group multiple counts under USSG § 3D1.2 [sic] with due deference.”) (internal citations omitted). 12 may have be

en warranted for

the guideline at issue

in Calderon , our precedents should not be read as e stablishing a uniform rule of alway

s equating the due deference standard wit h clear error review.

4. Due deference i s either a fixed sta ndard of review ind

ependent of the de novo and clear error standards, or a type of de novo review - Many of our cases set forth our general de novo standard for reviewin g mixed questions of fac t and law, then cite § 3742's “

due deference” st

andard for mix

ed questions involving application of th e sentencing guid elines. For example, United States v. Y ount states, “[W]e give due deference to the district court’s application of the guidelines to the facts. . . . The district co urt’s application

of law to the fact

s is reviewed de

novo .” 960 F.2d 955, 956 (11th Cir. 1992); accord United States v. Geffrard , 87 F.3d 448, 452 (11th Ci

r. 1996) (“[T

]he application of

the law to the fac

ts found is reviewed de novo . The application of the guidelines to the

facts, however

, is entitled to ‘due deference.’ ” (citation omitt

ed)); Singh , 291 F.3d at 763. 9 These passages ar

e misleading on se

veral grounds. Fir

st, in distinguishing between application of “the guidelines” and application of “the law,” they obscure13

the fact that the gui

delines are the law. Second, the passages can be i

nterpreted in two different wa

ys, both of whic

h are erroneous. On the one hand, one might interpret this pas sage to mean that we review de novo all mixed questions of fact and law, including q

uestions involving applic ation of the guideline s, but in the course of doing so we somehow accord the district court’s ruling some special degree of defere

nce. This is appar

ently the approa

ch we took in United States v. Hall , where we held

, “Although this

Court, as part of its de novo review, gives due deference to the district court's application of the guidelines to the facts, this Court is not bound by the dist

rict court's application of the guideline s to the facts and our review rema

ins de novo .” 312 F.3d 1250, 126 2 n.16 (11th Cir. 2002

) (emphasis added). This under

standing is also convey

ed by cases such as United States v. McIntosh wherein we held,

“We revie

w the district cour

t’s application of

the sentencing guidelines de novo , giving due deference to the district court’s refusal to group multiple counts under U.S.S.G. § 3D1.2.” 216 F.3d 1251, 1253 (11t h Cir. 2000). It is unclear how w

e can give due defer

ence to a district court’s conclusions when applying de novo review, since de novo review requires us to look at a question as if we ar

e the first court to consider it. Put sim ply, it is defini

tionally impossible to give

deference of any

sort to a decision bei

ng reviewed de novo

.14

Moreover, none of these cases explain how a de novo review involving “ due deference” to the district court would differ from a de novo review not involving such deference. Thus, the Hall / McIntosh interpretation of the above-quoted pass age fr om Yount is both unenlig htening and inter nally contradictory. The only other possible interpretation is that while in general we review mixed questions of fact and law de novo , we apply a s pecial, independen

t “due deference” stand

ard when the m

ixed question involves a

pplication of the sentencing guidelines.

This would impl

y that due defer

ence is a standard of intermediate

scrutiny fallin

g somewhere be

tween de novo and clearly er roneous. This interpretati

on is not only a stre

tch, given the text of

those opinions, but is a

lso erroneous. For the reasons discussed in the next Subpart, we do not believe that Congress intended the

phrase “due de ference” to esta blish a new, indepe

ndent standard of review.

B. The Correct Inte

rpretation of § 3742(

e)’s “Due Deference” L

anguage This Subpart attempts to harmonize our precedents concerning the proper standard of review

for a district cour

t’s application of

the sentencing guideli

nes to particular factu

al scenarios (“

mixed questions of

fact and law” involving the guidelines). We begin with Supreme Court decisions interpreting § 3742(e) that15

most of our precedents have overlooke d. We then turn t

o a handful of opinions within this circuit t

hat have interprete

d § 3742(e) in accord

ance with both the statute’s clear

language as well a

s these Suprem

e Court precedents . Finally, in the absence of a case

that can clearly

be identified as our

panel’s earlie st definitive ruling on this subject

, we set forth ge

neral principles to guide future panels i n resolving these co mplex issues.

1. Supreme Court

precedent

- Two Suprem

e Court cases shed l

ight on § 3742(e). In Koon v. United States , 518 U.S. 81, 98, 116 S. Ct. 20 35, 2046, 135 L. Ed. 2d 392 (1996), the Court held, while interpreting § 3742(e)’s “due deference” requirement, [t]he deferen

ce that is due depends

on the nature of the q

uestion presented. The district court may be owed no deference, for instance, when the claim on appeal is that it made some sort of m athematical error in applyi

ng the Guidelines; unde

r these circum

stances, the appellate court w

ill be in as good a positio n to consider the quest

ion as the district cou rt was in the first ins tance. Five years lat

er, in Buford v. United States , 532 U.S. 59, 121 S. Ct. 1276 , 149 L. Ed. 2d 197 (2001), t

he Court applied Koon ’s “sliding sc ale” understanding of “due deference.” The BufordCourt considered the degree of deference due a district court’s holding that

a defendant’s pr

ior convictions had not b een “functiona lly consolidated,” to determine whether a § 4B1 enhancement for repeat offenders16

was appropriate. Id. at 63, 121 S. Ct. at 1279

. The BufordCourt u pheld t he Seve nth Cir cuit’s d ecisio n to app ly a particularly d

eferential standa

rd of review, ak

in to “clearly

erroneous,” to this

type of decision. It sta

ted, “[T] he district court is i n a better position tha

n the appellate court to decide whether a particular set of individual circumstances demonstrates ‘functional consol idation’ [of prior sen tences, because] . . . [a]s a trial judg e, a district judge is li

kely to be mo

re familiar

with trial and sente

ncing practices in general, including consolidation procedures.” Id. at 64, 121 S. Ct. at 1280. The Court also empha

sized: The legal question a

t issue is a minor

, detailed, inter

stitial question of sentencing law . .. . That question is not a generally recurring, pure

ly legal matter, such as interpreting a set of legal words, say, those of an individual guideline . . . . Nor is tha t question readily

resolved by reference to gen

eral legal principles and standards alo ne. Rather, the question at issue grow

s out of, and is bounded b y, case-spec

ific detailed factual circu mstances. Id. at 65, 121 S. Ct. at 1280-81. These cases lead to sev eral conclusions. Koon tells us that “due deference” is not a fixed standar

d of scrutiny aki

n to de novo or “clear er

ror” review, bu

t instead establishes a

“sliding scale. ” When reviewi ng decisions involving the application of certain types of guidelines, no deference will be due a district court’s rulings,

effectively leading to de novo review. With other guidelines, an17

appellate court should accord the trial court’s decisions a high degree of deference, reviewing those rulings under the substantive equivalent of a “clear error” standard. Buford shows us how to distingui sh between guideline s requiring significant defere

nce and those requir

ing no deference. The two most i mportant factors are: (1) whether the ruling depends on a wide range of facts that are more readily available to the district court than to the court of appeals, due to the district court’s first-h

and experience try

ing the case, and (

2) whether the issue

primarily involves a legal inter

pretation of a guidel

ine (suggesting de novo review), or instead involves the application of a clearly-established, well-understood legal standard or princip le to a detailed fact pa ttern (indicating “clear error” review). “Clear err or” review is par

ticularly appr

opriate in the latte

r type of cases

because “the fact-bound nature of the decision limits the value of appellate court precedent.” Buford , 532 U.S. at 65-66, 121 S. Ct. at 1281. These principles are more fully

fleshed out with reference to our ow n precedents, to w

hich we now turn.

2. The Sliding Scale Interpretation of

§ 3742 in the Eleventh C ircuit - Despite the wide range of our circuit’s interpretations of § 3742's “due deference”18

language, discussed

in the previous Subpar

t, our precedents are not entirely without support for the Supreme Court’s slidi ng scale approach. See, e.g. , United States v. Tay

lor , 88 F.3d 938, 942 (11 th Cir. 1996) (rec ognizing that the m

eaning of the term “

due deference” de

pends on the particula

r guidelines at issue) . One of our early guidelines cas es, United States v. Malgoza , 2 F.3d 1107 (11th Cir. 1993), best exemplifi

es this understanding of

§ 3742. Citing the Four

th Circuit, we he

ld, “To say th

at we review a f

inding with due defer

ence means tha

t we give the district court the deference that is due in regard to that fi

nding. The defere

nce due will depend upon whether the determination is primarily factual or legal.” Id . at 1109 ( citing United States v. Daughtrey , 874 F.2d 213, 217 (4 th Cir. 1989)). We explained, When the district

court's applicatio

n of sentencing guideli

nes to facts involves primarily a legal decision, such as the interpretation of a statutory term

, less deference

is due to the district c

ourt than when the determination is primarily factual. . .. In contrast, when an application of the gui

delines to facts is c

loser to a pure questi

on of fact, the appellate court will review the application with the deference due under the clearly erron eous standard.

Id. at 1109-10 (citations omitted). This holding reflects the principles articulated above. Where a

determination turns primaril y on the evaluatio

n of facts (such as a witness’s credi

bility, intonatio

n, and demeano

r) that are m

ore accessible to t

he19

district court than to the cou rt of appea ls, we will d efer to the d istrict co urt’s application of th e law to those facts and apply “clear error” review. Similarly, a case involving application of a fairly well-understood legal standard to a complex factual scenario will be considered “primarily fac tual,” and be reviewed for clear error. Most other

cases, in contras

t, will be review

ed de novo

.

a. Specific type s of cases in which d e novo review is par

ticularly appropriate

- Unless a case falls int o one of the categori es specified above, de

novo review of the distr

ict court’s application of the law to th e facts of the cas e is generally appropriate. But see infraPart I.B.3. Many (but certainly not all) cases in whic h we app ly de novo review involve lega l issues for which m

ost or all of the relevant facts ar

e contained in the cou

nts in the indictm

ent for which the defendant has been convicted or

pled guilty. For

example, in United States v. S mith , 231 F.3d 800 (11th Cir. 2000) , one of the defendants was the county’s deputy registrar of voters. She was convicted of, among other things, fraudulently submitting an absentee ballot on behalf of a voter witho ut that voter’s knowl edge or consent. We did not have to go f

ar beyond the al

legations contained in

the indictment t

o affirm the di strict court’s r uling that this offense , under the circum stances, involved an “abuse[] [of] a position of public or private trust.” Id. at 819 (quoting U.S.S.G. § 3B1.3). Consequently, there wa s no special need to defer to the district20

court’s assessm

ents, and de novo review was appropriate. Id. at 806 (“We review the district court’ s application of the S entencing Guideline s de novo . . . .”). Similarly , in United States v. S ingh , 291 F.3d 756, 762 (1 1th Cir. 2002) , we reviewed the district court’s interpretation of U.S.S.G. § 2F1.1(b)(6), w hich provides for an offe

nse-level enhance

ment if part of

a fraud is com

mitted outside of the United State s. Because it wa s undoubtedly appar

ent from the ind

ictment whether part of th

e fraud for which

the defendant was convicted had occurr ed in a different country, de novo review was appropriate. See Singh , 291 F.3d at 762 ( citing United States v. Bradford , 277 F.3d 1311, 131 2 (11th Cir. 2002)). Another

reason de novo review was appr opriate in Singh

was because our opinion focused more on interpreting the guideline’s language than on digging through a complex factual record.

De novo review is also wa rranted in cases w

here we must d

etermine whether the distri

ct court applied the correct sentencin g guideline (or subsec

tion of a sentencing gui deline) for the defend ant’s underlying condu ct. See, e.g. , United States v. D e La Mata , 266 F.3d 1275, 1302 ( 11th Cir. 2001) (re viewing de

novo the district court’ s decision as to wheth er the “m oney laundering”

or “fraud” sentencing guideline w

as more appropr

iate, given the fa

cts of the case); Smith , 231 F.3d at 806-07, 81 8-19 (applying de novo review and upholding district10 Perjury invo lves making a fa

lse statement “wit

h the willful intent t

o provide false testimony, rather than as a result of confusion, mistake, or faulty memory.” Singh , 291 F.3d at 21 court’s decision to apply U.S. S.G. § 2H2.1( a)(2) instead of § 2

H2.1(a)(3) because “[t]he off enses for which [de

fendants] were

convicted involved . .

. the forging of other voters’ names on applications of absentee ballot and affidavits of absentee voter”). Such m

atters turn prim

arily on the cont

ents of the indictm

ent and interpretation of t

he sentencing guidelin

es, areas for w

hich we are not esp ecially dependent on dis trict courts.

b. Specific type s of cases in which “ clear error” r

eview is particula

rly appropriate

- A key facto

r in determinin

g whether “due

deference” req

uires us to review a district

court’s applicat

ion of the guidelines in

a particular case

is the degree to which its ruling is based upon a va riety of “ intangible” factor

s that a district judge is in a better position than we are to assess.With certain ty pes of issues, a v ariety of con sideratio ns may have a sig nificant i nfluence o n the judge ’s determination,

yet cannot be ad

equately refl

ected in the cold, ba

rren wasteland of the record. For example, U. S.S.G. § 3C1. 1 provides for a two-level enhancem ent if the defendant eng

aged in obstruction of justice during the c ourse of the investigation, prose

cution, or sentenci

ng of his crime.One way in w hich a defendant may

obstruct justice is

by perjuring hi

mself at tria

l. 10 See U.S.S.G. §763 (quoti ng United States v. Dunnigan , 507 U.S. 87, 94, 113 S. Ct. 1111, 122 L. Ed. 2d 445

(1993)). 22 3C1.1, cmt. n.4(b) (“T

he following is a non- exhaustive list of exa mples of the types of conduct t

o which this adjustm

ent applies: . . . committing , suborning, or attempting to subo

rn perjury. ”). An appellate court is not in a positio

n to assess a defendant’s dem

eanor, apparent s

incerity, into

nation, expression,

gesticulations, and a wide range of other considerations that are pertinent in determining whether he has perjured himself. See also Owens v. Wain wright , 698 F.2d 1111, 1113 (11th Cir. 1983) (“Appellate courts reviewing a cold record give particular deference to cre

dibility determ

inations of a fact- finder who had the op portunity to see live testim

ony.”); United States v. D e Varon , 175 F.3d 930, 938 (11th Cir. 1999) (en banc) (“

Intensely fac

tual inquiries . . .

are properly c

onsigned to the experienced discr

etion of the district

judge.”); see also United States v. A bbell , 271 F.3d 1286, 1303 (11t h Cir. 2001) (“ [B]ecause the demeanor of the pertinent juror is impor

tant to juror m

isconduct determ

inations, the distric

t court is uniquely situated to make

the credibility

determinations

that must be m

ade in cases like thi s one: where a juror’s motivation s and intentions are at issue.”). Consequently, it is not only appropriate, but necessary, for us to accord special deference to district court rulings under guidelines such as § 3C1.1 when23

matters such as perjury are a t issue (by re viewing th e district court’s determinations only for “clear erro r”). E.g. , Singh , 291 F.3d at 764 (“ [W]e cannot say that the distr

ict court’s deci sion to enhance [def endant’s] adj usted offense level pursuant to U.S.S.G. § 3C1.1 was clearly erroneous. T herefore, we affirm the district court on this issue.”). H owever, because

§ 3C1.1 encompa

sses a wide range of conduct whic h can obstruct justi ce, we need not examine all § 3C 1.1 enhancements w

ith special defere

nce. For exam

ple, in United States v. T aylor, we reviewed de novo a court’s two-level enhancement for obstruction of justice under § 3C1.1 for a defe

ndant who had “r

epeatedly ref

used to provide the gove

rnment with handwriting ex

emplars, and when he finally did, h[ad] atte

mpted to disguise his writing.” 88 F. 3d at 941-42. Unlike the perjury a

t issue in Singh , there was no need for a particu

larized assessm

ent of the credibili

ty or demea

nor of the defendant in Taylor . The pertinent conduct (failing to pro vide the handwriting exemplars) could clearly be set forth in detaile

d, non-conclusory

findings by the district court, w

hich were accor

ded great defere

nce. Consequently

, we were in a much better position t o review de novo the district court’ s application of the obstruction of jus tice guideline to t hose facts than in a t ypical perjury case. Id. at 942. Thus, even w

ith regard to applica

tion of a particular

guideline, the degr

ee of deference “due” a district court can vary dram atically based on the allegations at24

issue. Because of the im

portance of determ

ining a defendant’ s apparent sincerit y through firsthand observation, we have also accorded special deference to district court ruli ngs conce rning offe nse-level reduction s under § 3 E1.1 for a def endant’s acceptance of responsibility, reviewing them under a “clear error” standard as well. See, e.g. , United States v. B renson , 104 F.3d 1267, 1288 ( 11th Cir. 1997) (“We revi ew the district cou

rt’s decision as t

o acceptance of r

esponsibility only

for clear error.”

); United States v. P

ritchett , 908 F.2d 816, 824 (1 1th Cir. 1990) (“ The district court is in a unique position to evaluate whether a defendant has accepted responsibility fo

r his acts, and the d

etermination i s entitled to great de ference on review. Unless

a court’s deter

mination is with

out foundation, it shoul

d not be overturned on app eal.”). Of course, these are only some of the m ost common types of cases where § 3742's “due deference” requirement will require us to apply a “ clear error” standard to district courts’ resolutions of mixed questions of fact and law involving the guidelines. As discussed earli

er, the Suprem

e Court’s ruling in Buford , as well as our ow n holding in Malgoza , remind us that whenever a district court’s determ

ination is best chara

cterized as the ap

plication of a clea

r-cut standard to a com

plex set of facts,

rather than a lega

l interpretation tha

t can have25

broader value bey

ond the instant case,

“clear err

or” review is gene

rally appropriate.

3. Exception to the Two-Step Process of Review: “Dispositive” Factual Findings - Some guidelines are fairly cut-and-dry; after reviewing the district court’s factual

findings for clear

error, it is rat

her apparent whet

her or not a particular enhanc ement applies.In these cases, t he factual findings t

end to be rather concrete and specific (e.g., the defendant either had a firearm, or he didn’t), or involve “lay” judgment calls that rely m ore on common-sense, everyday

assess ments th an on sp eciali zed leg al know ledge ( e.g., di d the de fendan t play a “major” or “minor” role in the criminal scheme). Technically,

of course, we m

ust review a distri

ct court’s applic ation of the guidelines to the facts, even in these cases. As a practical matter, however, once we come to a conclusion as to the distr ict court’s fac

tual findings, the que stion of the applicability of a g uideline of this t ype practically answers itself

. We frequentl y decline to specify a lev el of defere nce to acco rd the dis trict cour t’s application of these

guidelines simply

because the issue is essentially m oot – the factual findings all

but determine t

he outcome. T

hus, as a type of

shorthand, this court often charac

terizes questions of

these guidelines’ applicability a s reviewable26

under a “clearly erroneous” standard. While the “ clearly erroneous” standard technically app

lies only to the dis

trict court’s fa

ctual findings, those

findings tend to be absolutely disp ositive of issues involving thes e types of guidelines. For example,

in United States v. Alred , 144 F.3d 1405 (11th C ir. 1998), this court reviewed a

district court’s

ruling imposing an

offense-level en

hancement under U.S.S. G. § 2D1.1(b)( 1) because the defe ndant possessed a fir

earm in conjunction with his offense. We noted, “We review a se ntencing judge’s factual findings . . . for clear error.” Id. at 1420. Aft er uphold ing the di strict cou rt’s finding that the defe

ndant possessed a fir

earm in connec

tion with his drug distribution, we had no choice but to affirm its imposition of a two-level enhancement under § 2D1.1 (b). Id. (“We conclude that the facts that the district judge used as the bas

is for the section 2D 1.1(b)(1) enhanc ement were not clearly erroneous. Thus, [the defendant’s] enhancement for possession of firearm s was appropriate.”); see also United States v. Geffrard , 87 F.3d 448, 452 (11th Cir. 1996) (“Possession of

a firearm for sentencing pur poses is a factual fin ding.”). There was no nee

d to get into the requir

ements of “

due deference” or

to review the district court’s application of the la w to those clear-c

ut facts. The co

urt did not have to make any independent legal determinations or draw any further conclusions.27

Similarly , in United States v. D e Varon , we held tha t “a district court’s determination of whether a defendant qualifies for a minor role adjustm ent under the Guidelines is a f

inding of fact that w

ill be reviewed onl

y for clear e

rror.” 175 F.3d at 934. We explained, “[T]he ultim ate determination of [the size of a defendant’s] role in the offense is . . . a fundam

entally factua

l determinatio

n entitled to due defer

ence and not a legal conclusion subject t o de novo review.” Id. at 938; see also United States v. C alderon , 127 F.3d 1314, 1341 (11th Cir. 1997) (“[W]e review the district judge’s fa ctual determination [concerning the size of the defendant’s role] for clear error.”). Of c ourse, once we affirmed this factual finding (under the “

clear error” st

andard), the quest

ion of a downward a

djustment under § 3B1.2 (for defen dants who play only a minor role) was essentially settled. Again, there was no need for either us or the district court to draw further legal conclusions. This reasoning has also been applied o n the other end of th e spectrum. Determinations as to whether defendants played “m anagerial” roles have been treated as questions

of pure fact that do

not raise questions ab out the pertinent guideline’s applic ation and are reviewed u nder the clearly erroneous standard. United States v. G

linton , 154 F.3d 1245, 1260 (11th Cir. 1998) (“The district court’s determination is reviewed under the clear ly erroneous rule.”).28

It is critical to em

phasize that this ty

pe of analysis – e ssentially foldin g our legal conclusions into t

he district court’ s factual findings – i s nothing more tha n a shorthand we use wh

en we feel there

is nothing to be gained by looking at a district court’s application of a clear-cut principle to a particular set of facts. In the major ity of cas es, howe ver, th ere is u sually some sort of legal deter mination to be made even a

fter the fact-f

inding is done. As a r

esult, our usual pra

ctice is to examine t he dist rict co urt’s ap plicat ion of t he law to the fact s separ ately, according this determination the level of deference it is due under § 3742 (as discussed in the p revious Subpart). See, e.g. , United States v. H all , 312 F.3d 1250, 1260-61 (11th Cir. 2002) (applying a de novo standard of review in determining whether “the district court erred in failing to apply a four-level sentence enhancem

ent under U.S.S .G. § 2G2.2(b) (3) (2001)” for tr afficking child pornography that portrayed “ sadistic conduct”); Singh , 291 F.3d at 762 (r eviewing de novo a district court’s decision to apply a two-level enhancement under U.S.S.G. § 2F1.1(b)(6)(B) “because a sub stantial part of the fraudulent schem

e of which [the defendant] was convicted was committed from outside of the United States”); Taylor, 88 F.3d at 942 (applying a de novo standard in review ing the district court’s application of U.S .S.G. § 2A6. 1(b)(1) for defe ndants who engage in “any condu

ct evidencing an inte

nt to carry out [ a] threat”). This line is29

admittedly

indistinct and uncert

ain, but we are bo

und by our preced

ents and so must adhere to this doct rine.

4. A Concluding Note about Upward and Downward Departures - Of course, nothing in this opinion is meant to affect the manner in which we review district court ruli ngs concerning up ward or downward departu res. “We revie w the district court’s discretionary refusal to depart downward only if the district court erroneously believed it did not have the statutory authority to do so.” De La Mata , 266 F.3d at 1303; see also Calderon , 127 F.3d at 1342 (“ [D]ownward d eparture is a matter of di scretion that rests with the district j udge and is ordinarily not appealabl e. . . . [W]e simply have no jurisdi ction to re view the di strict jud ge’s discretionary decision unless it wa s made based upon the belief that he di d not possess such discretio

n.”). In contra

st, “[w] e review a distri

ct court’s decisi

on to [upwardly] depart from the Guidelines for an abuse of discretion.” United States v. Melvin , 187 F.3d 1316, 132 0 (11th Cir. 1999).

C. Standard of Review

for This Case Williams asks us to review th e district court’s gro uping of his offen ses. Since this question clearly invo lves the ap plicatio n of the gu idelines to Williams’s case, § 3742 requires us to review this question “with due deference” to the district30

court’s ruling. See United States v. Bradford , 277 F.3d 1311, 1312 (11th Cir. 2002) (“[T] his Court views the di strict court’s r efusal to group m

ultiple counts under § 3D1.2 with d

ue deference.”

); accord United States v. T illmon , 195 F.3d 640, 642 (11th Cir. 19 99); United States v. M cIntosh , 216 F.3d 1251, 1253 ( 11th Cir. 2000); United States v. Bonner , 85 F.3d 522, 525 (11 th Cir. 1996). Notwithstanding the implication of these cases – that “due deference” is either a substantive standard i

n its own right, or a

sort of modific ation on de novo review – the preceding discuss

ion makes clea

r that “due def

erence” require s us to assess the type of question w

e are reviewing i

n order to determ

ine the degree of r

espect to accord the district c ourt’s findings. Applying our Malgoza

standard, the quest

ion of whether char

ges should have been grouped d ifferently seems “primarily” one of law rather than of fact. We need not rely on the district court’s factfinding, because the charges of which the defendant was c

onvicted are clear

ly set forth in the

indictment. T

o resolve this issue, we merely must interpret and app ly § 3D1.2's standards to these charges. Moreover, unlike Buford , this case does not i nvolve an overly c

omplex or unique fact pattern that will render our decision of little value in fu ture cases. Thus, we need not afford the d

istrict court’s r

uling any special

deference, and we review its ruling de novo

.31 III. Having established t

he proper standard o f review, we n ow turn to the substance of Will

iams’s clai

ms. He argue s that Counts I and II – for conspiring to rob the armore

d car and attem

pting to rob the arm

ored car, respe

ctively – should have been grouped together under either §§ 3D1.2(a) or (b). We consider each section in turn.

A. Grouping Multiple Counts Under § 3D1.2(a) U.S.S.G. § 3D1.2(a) is not a pplicable because m

ultiple crimes

must be committed

in the same gene

ral area and at a

pproximately

the same tim

e to be considered part of t

he “same act or transaction .” The guidelines provide the following example: The defendant is convicted of two counts of assault on a federal officer for shooti

ng at the same of

ficer twice wh

ile attempting t

o prevent apprehensio

n as part of a single c

riminal episode . The counts are to be grouped tog ether. . . . But: The defendant is conv icted of two counts of assault on a federal officer for sh ooting at the offic er on two separate days.

The counts are not

to be grouped together. Id

. § 3D1.2, cmt . n.3 (empha sis in original). In

virtually all c ases, a conspirac y is formed prior to the underlying offense it concerns, and in a place other than where that offense is to be

committed . Thus, the form ation of the conspira

cy and the commission of the underlying crime are m ore akin to shooting the federal officer32

on two separate days than shooting him twice “as part of a single crim inal episode.” Id . Only wher e the conspiracy

and the underlyin

g offense are rough

ly contemporaneou

s with each other – t

hat is, when they

are in both temp oral and physical proxim

ity with each ot

her – are they part of the “sa me act or tra

nsaction” as contemplate

d by § 3D1.2(a) . As we held in United States v. Beard , 960 F.2d 965, 969 (11th Cir. 19 92), “the pass age of time bet ween offenses, differences in place of the offense, the nature of the offense, and the intervening circumstances taken together may justify separate grouping of the of fenses.”

B. Grouping Multiple Cou nts Under § 3D1.2(

b) Consequently, if Counts I and II are to be grouped together, it must be under U.S.S. G. § 3D 1.2(b ) (req uirin g cou nts t o be gr oupe d when they “in volv e the s ame victim and two or more acts or transactions connected by a com mon criminal objective or constituting part of a common scheme or plan”). The conspiracy to rob the armore

d car and the attem

pted robbery of that car were c learly parts of

the same “comm

on plan or scheme.” In fact, the attempted robbery of the armored car was the sole objective of the conspiracy. Thus, the only real issue i s whether these acts in volved the same victim. Inexplicably,

the PSI concluded t

hat these counts involve

d separate victim

s,11 Williams ’s attorney mad e this same point duri ng William s’s senten cing hearing: The probation officer’s analysis fails because the probation off icer concluded that one guard was the victim of the conspiracy a nd another guard is the victim of the robbery. That is clearly not what happened here. And as far as the conspiracy , either both guards were also the victim of the conspiracy or no one was the victim of the conspiracy. But [it cannot be argued that] one guard w as . . . the victim of the conspiracy and one guard was . . . the victim of the robbery. That doesn’t make common sense. The indictment charges one conspiracy with 2 victims. And the robbery charge, the indictment charges one robbery with two victims. Trans. Apr. 3, 2002, at *4. 33 stating “Group One [including only Count I] will re

present the harm

caused to Frank Granja and Group Two [including only Count II] will represent the harm caused to Eshaman Ruiz.” This makes no se nse. Count I was a

conspiracy to r

ob the armored c ar; Count II was t he attempted r

obbery of that c ar. It is impo ssible to claim that only Frank Granja was harm ed by the conspiracy, while only Esham an Ruiz was harm

ed by the attem

pted robbery. Both men were attacked during the robbery, and bo

th were put in jeo

pardy by the

formation of th

e conspiracy. The only reasonable

explanation is that bot

h men were vic

tims of both offe

nses. Although as the govern

ment claim

s, multiple “

counts arising out of a

single transaction or occurrence [may not be] grouped together . . . w hen there are distinct victims,” see Brief for the United States , at *10 (quoting U.S.S.G. § 3D1.2, cmt.background), the vic tims of the two offenses at issue he re are the same. Consequ

ently, the off

enses are suitable for grouping under § 3D 1.2. 11 As a34

matter of law, a co nspira cy to commit a subst antive offens e will al most alwa ys have the same victims as the comm ission (or attempted commission) of that substantive offense, and so the two should almost always be grouped together under § 3D1.2. Th

is result is essentia

lly mandate

d by the comm

entary to the guidelines, which s

tates, “W hen one count charges

a conspiracy or

solicitation and the other charges a substantive offense that was the sole object of the conspiracy or solicitation, the counts will be grouped together under subsection (b).” U.S.S.G. § 3D1.2, cmt. n.4. Thus, we do not contest the government’s claim that William s’s conduct “resulted in ‘two separate victims.’ ” Brief for the United States , at *6. However, this observation does not allow the Government to separate two offenses that would otherwise be grouped together by arbitrarily “assigning” one victim to each offense where th

ere is no clear bas

is for doing so. As di scussed above, it is precisely because there were the same “ two separate victims” for each of Williams’s offenses that we must group them together. If the Government wanted to punish Williams separately for the harm he inflicted upon each individual driver, it should hav

e included two aggra

vated assault or att

empted mur

der counts12 It is possible, however, that aggravated assault charg es would have been grouped together with the robbery. See U.S.S.G. ch.3, pt.D, introductory cmt. (“Other offenses, such as an assault causing bodily injury to a teller during a bank robbery, are so closely related to the more serious offense

that it would be app

ropriate to trea

t them as part of the

more serious offense . . . .”).

35 in the indictment

. 12 Our conclu sion compel s us to rejec t the noti on, implicit in the gov ernment’s argument, tha

t each offense ca

n have only one “

victim.” The

Commenta

ry to the Sentencing Guideli

nes states, “G

enerally, the

re will be one pers on who is directly and most seriousl

y affected by

the offense and is th

erefore identifi

able as the victim.” U. S.S.G. § 3D1. 2, cmt. n.2.While such com mentary is

binding on us,

see Stinson v. United States , 508 U.S. 36, 3 8, 113 S. Ct. 1913, 1915, 123 L. Ed. 2d 598 (1993) (“[C ]omment ary in the Guide

lines Manual that inte

rprets or explains a guideline is authorita

tive unless it violates

the Constitution or a f

ederal statute, o

r is inconsistent with,

or a plainly er

roneous reading of,

that guideline.”),

this particular statement is a broad generalization rather than an inflexible rule that must be applied in

every single ca

se. Where off

enses such as the robb ery and conspiracy at issue here equally harm m ultiple people, the guidelines do not force us to designate the “

one real victim .” The main purpose of this provisi

on is simply to emphasize tha

t “secondary

victims,” suc

h as bystanders w

ho may be36

traumatized at the sight of a crime, should not be counted as victims when grouping offense s under § 3D1.2. See U.S.S.G. § 3D1.2, cmt.n.2 (“The term ‘victim’ is not intended to include indirect o r secondary victims.”). Consequently, Appellan t’s sentences on Coun ts I and II are VACATED, and the case is REMANDED for resen tencing. SO ORDERED.