1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-5-1995

United States v Griswold

Precedential or Non-Precedential:

Docket 94-1979

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1995 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"United States v Griswold" (1995). 1995 Decisions. Paper 151.

http://digitalcommons.law.villanova.edu/thirdcircuit_1995/151
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 No. 94-1979 

 

 UNITED STATES OF AMERICA 

v. 

 

 GREGORY GRISWOLD, 

 a/k/a ROBERT SAUNDERS, 

 a/k/a JULIUS H. COLLIER, JR., 

 a/k/a THEODORE COBB 

 Gregory Griswold, 

 Appellant 

 

 On Appeal from the United States District Court 

 for the Eastern District of Pennsylvania 

 (D.C. No. 94-cr-00083) 

 

 Submitted May 15, 1995 

 BEFORE: COWEN, LEWIS and GARTH 

 Circuit Judges

 (Filed June 5, l995 ) 

Nancy B. Winter 

Office of United States Attorney 

615 Chestnut Street 

Philadelphia, PA 19106 

 COUNSEL FOR APPELLEE 

 UNITED STATES OF AMERICA 

James M. Becker 

Saul, Ewing, Remick & Saul 

3800 Centre Square West 

Philadelphia, PA 19102 

 COUNSEL FOR APPELLANT 

 GREGORY GRISWOLD 
 OPINION 

COWEN, Circuit Judge. 

 In this appeal, we are asked to decide whether the 

district court erred: (1) in ruling that eight firearm counts in 

the indictment formed five separate groups under U.S.S.G. § 

3D1.2, instead of a single group; and (2) when, in sentencing the 

defendant under the more favorable 1990 sentencing guidelines, it 

failed to accord the defendant an additional point for acceptance 

of responsibility as is permitted under § 3E1.1 pursuant to the 

1993 sentencing guidelines. Because we conclude that the 

district court did not err in applying and interpreting the 

Sentencing Guidelines, we will affirm the sentence of appellant 

in all respects. 

 I. FACTUAL AND PROCEDURAL HISTORY 

 Between May 22, 1989 and June 26, 1991, appellant 

Gregory Griswold ("Griswold") purchased seven firearms from a 

licensed firearms dealer in Philadelphia. Specifically, he 

purchased two firearms on May 22, 1989, two more on August 8, 

1989, and one each on October 6, 1989, March 4, 1991, and June 

26, 1991. On the first three occasions, Griswold used the 

fictitious name of "Julius H. Collier, Jr." The last two times 

he used the name "Robert Saunders." For each firearm, he 

completed the standard "Firearms Transaction Record" of the 

Bureau of Alcohol, Tobacco, and Firearms. On the form, he 
misrepresented that he had never been convicted in any court of a 

crime punishable by imprisonment for a term exceeding one year, 

when, in fact, he had previously been convicted of third degree 

homicide. On July 11, 1991, Philadelphia Police Officers, while 

executing a search warrant at a residence in Philadelphia, found 

Griswold in possession of two of the illegally purchased 

firearms. 

 On February 23, 1994,1 a federal grand jury in the 

Eastern District of Pennsylvania returned an indictment charging 

Griswold with seven counts of making false statements to a 

licensed dealer in connection with the acquisition of a firearm, 

in violation of 18 U.S.C. § 922(a)(6), and one count of unlawful 

possession of firearms by a previously convicted felon, in 

violation of 18 U.S.C. § 922(g)(1).2 Griswold entered into a 

 

1. The delay between the initial arrest and the indictment of 

Griswold was due to the fact that he remained a fugitive for more 

than two years. 

2. The indictment charged Griswold as follows: 

COUNT DATE OF 

OFFENSE 

FIREARM ALIAS USED OFFENSE 

One 5-22-89 Intratec 

9mm. semiauto 

Julius 

Collier, 

Jr. 

False 

statement 

Two 5-22-89 Colt .380 

semi-auto 

Julius 

Collier, 

Jr. 

False 

statement 

Three 8-8-89 Sig Sauer 

.380 semiauto 

Julius 

Collier, 

Jr. 

False 

statement 

Four 8-8-89 Colt .380 

semi-auto 

Julius 

Collier, 

Jr. 

False 

statement 
plea agreement with the government and on May 16, 1994, he 

entered a plea of guilty to all eight counts. The plea agreement 

contained several stipulations relevant to the computation of 

Griswold's sentencing guideline range. Because the Commission 

had amended § 2K2.1 after Griswold committed the charged 

offenses, the 1993 version would have resulted in a harsher 

sentence than the version in effect when he committed the 

offenses, raising a possible ex post facto challenge. Both 

parties agreed that the version of U.S.S.G. § 2K2.1 effective 

November 1, 1990 was the applicable guideline for determining the 

offense level of the firearms offenses.3 The parties further 

(..continued) 

Five 10-6-89 Beretta 

.380 semiauto 

Julius 

Collier, 

Jr. 

False 

statement 

Six 3-4-91 Beretta .25 

semi-auto 

Robert 

Saunders 

False 

statement 

Seven 6-26-91 Glock 9mm. 

semi-auto 

Robert 

Saunders 

False 

statement 

Eight 7-11-91 same as 

counts 5 

and 6 

Robert 

Saunders 

Felon in 

possession 

3. All parties agree that the "stipulations [were] not binding 

upon either the Probation Department or the Court." App. at 20. 

We further recognize that despite this stipulation, Griswold 

properly preserved for appeal his right to argue that the 1993 

guidelines should be applied so that he may gain the benefit of 

one extra point for acceptance of responsibility pursuant to § 

3E1.1. This argument was not waived because at the time of the 

stipulation, the parties agreed that Griswold would be entitled 

to a maximum of two points for acceptance of responsibility. The 

issue of the extra point did not arise until after the district 

court, exercising its discretion, disregarded that portion of the 

plea agreement which grouped all eight offenses as one. See

infra part IV.A. for discussion of the grouping of the offenses 
stipulated that the eight firearms offenses constituted a single 

group under U.S.S.G. § 3D1.2.4

 However, over Griswold's objection at sentencing, the 

probation office concluded and the district court agreed, that 

the application of U.S.S.G. § 3D1.2 to the eight firearms 

offenses yielded five separate groups, not a single group as the 

parties had stipulated. As a result of the district court's 

grouping of the firearms offenses into five groups, Griswold's 

offense level was increased to 17, which would have made him 

eligible for a three-level reduction for acceptance of 

responsibility under § 3E1.1 of the 1993 guidelines. However, 

the district court concluded that the 1990 version of § 3E1.1 was 

controlling and granted only a two-level reduction. This appeal 

followed. 

(..continued) 

and part IV.C. for discussion of the applicability of the 1993 

guidelines. 

4. Both parties maintain that the plea agreement provided that 

all eight offenses would be grouped as one pursuant to § 3D1.2. 

Although the plea agreement states,"[t]he government and the 

defendant agree and stipulate that the offenses group for the 

purposes of sentencing pursuant to U.S.S.G. § 3D1.2," App. at 

20, it does not explicitly state that all of the offenses will be 

grouped into one group. Because such ambiguous language lends 

itself to a variety of interpretations, we believe that the 

better practice in drafting plea agreements is to explicitly 

state how many groups will be formed as a result of "grouping." 

As evidenced by the district court's decision in this matter, it 

is not always the case that grouping under § 3D1.2 will yield 

only one group. 
 II. JURISDICTION 

 The district court had jurisdiction to entertain this 

criminal matter pursuant to 18 U.S.C. § 3231 insofar as the 

defendant was charged with offenses against the laws of the 

United States under 18 U.S.C. §§ 922(a)(6), 924(a), and 

922(g)(1). Our jurisdiction is premised on 28 U.S.C. § 1291 

(appeal from a final judgment of a district court) and 18 U.S.C. 

§ 3742(a)(2) (appeal from a final sentence). 

 III. STANDARD OF REVIEW 

 A district court's application and interpretation 

of the Sentencing Guidelines is subject to plenary review. 

United States v. Mobley, 956 F.2d 450, 451-52 (3d Cir. 1992); see

United States v. Riviere, 924 F.2d 1289, 1304 (3d Cir. 1991) 

(construction of § 3D1.2 is a legal issue subject to plenary 

review). However, a determination of whether various offenses 

are part of one overall scheme is essentially a factual issue 

which we review under a clearly erroneous standard. United 

States v. Cusumano, 943 F.2d 305, 313 (3d Cir. 1991), cert.

denied, 502 U.S. 1036, 112 S. Ct. 881 (1992) (citing United 

States v. Ortiz, 878 F.2d 125, 126-27 (3d Cir. 1989). Finally, 

when reviewing the appropriateness of a grouping, deference must 

be given to the district court. United States v. Seligsohn, 981 

F.2d 1418, 1426 (3d Cir. 1994), cert. denied, __ U.S. __, 115 S. 

Ct. 1143 (1995) (citing United States v. Beard, 960 F.2d 965, 969 

(11th Cir. 1992)). 
 IV. DISCUSSION 

 A. Groups of Closely Related Counts

 Griswold maintains that the district court erred in its 

application of the multiple count rules under § 3D1.2 of the 

Sentencing Guidelines by concluding that the eight firearms 

counts in the indictment made up five separate groups, instead of 

one group, as the parties had earlier stipulated. Section 3D1.2 

of the 1990 United States Sentencing Guidelines stated in 

relevant part: 

 All counts involving substantially the same 

harm shall be grouped together into a single 

Group. Counts involved substantially the 

same harm within the meaning of this rule: 

 . . . . 

 (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(b)-(d) (1990). Griswold argues that § 3D1.2(b), 

(c) and (d) each require grouping of the eight firearms offenses 

into a single group. 

 1. U.S.S.G. § 3D1.2(b)

 Griswold asserts that the initial inquiry under § 

3D1.2(b) is whether the counts involve the same victim. In the 

commentary to § 3D1.2, application note 2 indicates that, "[f]or 

offenses in which there are no identifiable victims (e.g., drug 

or immigration offenses, where society at large is the victim), 

the `victim' for purposes of subsections (a) and (b) is the 

societal interest that is harmed." U.S.S.G. § 3D1.2, comment, 

n.2 (1993).5 Griswold concludes that the firearms offenses to 

which he pleaded guilty harmed no specific person, but rather 

offended society at large. He notes that 18 U.S.C. § 922(a)(6) 

(making false statements to a dealer in connection with the 

acquisition of firearms) and 18 U.S.C. § 922(g)(1) (unlawful 

possession of firearms by a previously convicted felon) are part 

of a comprehensive scheme to promote the societal interest in 

combatting the criminal use of firearms by deterring sales to 

 

5. As noted earlier, both parties concede and the district court 

agreed that the 1990 version of the sentencing guidelines should 

be applied in calculating Griswold's sentence. However, as noted 

in § 1B1.11 of the sentencing guidelines, "if a court applies an 

earlier edition of the Guidelines Manual, the court shall 

consider subsequent amendments, to the extent that such 

amendments are clarifying rather than substantive changes." 

U.S.S.G. § 1B1.11 (1993). Although the commentary and 

application notes from 1990 and 1993 are substantially similar, 

we will refer to the 1993 commentary and application notes when 

it is instructive to do so. 
specified classes of persons, including convicted felons. 

Griswold next argues that because the societal interests 

underlying both laws are similar and because society is the 

victim, all of the offenses must be grouped together. 

 In support of his argument that § 3D1.2(b) requires all 

these offenses to be grouped into a single group, Griswold cites 

United States v. Riviere, 924 F.2d 1289 (3d Cir. 1991). In that 

case, we were faced with the question of proper grouping as to 

three firearms-related counts which arose from the same incident 

or conduct: possession of a firearm by a convicted felon, 

illegal delivery of the same firearm, and the possession of the 

firearm with an obliterated serial number. Id. at 1303. In 

deciding whether these offenses should be grouped, this court 

referred to the commentary to § 3D1.2(d) of the 1990 sentencing 

guidelines which provided that sentence enhancement should not 

result from multiple counts unless they represent additional 

conduct. Id. at 1305. We concluded that because no additional 

conduct was represented by the additional counts, it was 

appropriate to group all of the firearms-related offenses. Id.

at 1306. 

 Unlike the situation present in Riviere, Griswold's 

multiple counts encompassed numerous instances of illegal conduct 

-- purchases and possession of eight semi-automatic handguns 

spanning in excess of two years. We remain unconvinced that the 

Sentencing Commission contemplated grouping these offenses. To 

do so would reward Griswold, who made discrete purchases of 
firearms over a substantial period of time, by punishing him the 

same as an offender who made one purchase. 

 Furthermore, in analyzing "the societal interest that 

is harmed," we find application note 4 to be instructive: 

 Subsection (b) provides that counts that are 

part of a single course of conduct with a 

single criminal objective and represent 

essentially one composite harm to the same 

victim are to be grouped together, even if 

they constitute legally distinct offenses 

occurring at different times. This provision 

does not authorize the grouping of offenses 

that cannot be considered to represent 

essentially one composite harm (e.g., robbery 

of the same victim on different occasions 

involves multiple, separate instances of fear 

and risk of harm, not one composite harm) . . 

. . The defendant is convicted of two counts 

of rape for raping the same person on 

different days. The counts are not to be 

grouped together. 

U.S.S.G. § 3D1.2, comment, n.4 (1993) (emphasis in original). 

The Sentencing Commission, in its wisdom, saw fit to decide that 

multiple counts of rape or robbery not be grouped together when 

dealing with the same victim. Because each time Griswold 

illegally acquired a firearm there was a separate and distinct 

fear and risk of harm to society, we hold that his illegal 

purchase of firearms on multiple occasions should not be grouped 

together. 

 

 2. U.S.S.G. § 3D1.2(c)

 Next, Griswold argues that even assuming arguendo the 

offenses should not be grouped under § 3D1.2(b), they should be 

grouped under § 3D1.2(c). Griswold notes that his status as a 
previously convicted felon is an essential element of the offense 

of possession of a firearm by a previously convicted felon and a 

factor in setting the base offense level of the counts involving 

false statements in connection with the acquisition of a firearm. 

He concludes that the counts should be grouped as one because 

"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." (quoting U.S.S.G. § 

3D1.2(c) (1990)). However, as noted by the probation office, no 

conduct embodied in one of the counts is used as a specific 

offense characteristic in the determination of the offense level 

for another count. Griswold's status as a convicted felon is 

implicated in establishing the base offense level for each 

offense. However, no separate conduct by Griswold resulted in 

double counting. Further, where there was some overlapping of 

counts, i.e., where the firearms involved in the count charging 

the defendant with illegal possession of the firearms (count 

eight) were also involved in counts charging false statements 

(counts six and seven), the court did group those counts 

together. 

 3. U.S.S.G. § 3D1.2(d)

 Last, Griswold contends that all of the offenses should 

be grouped together pursuant to § 3D1.2(d). He asserts that the 

firearms offenses were "ongoing and continuous" because they were 

part of the same criminal plan, and they all involved his felon 

status as an essential element. He refers to the commentary of § 
3D1.2(d) which states that "firearm offenses" are among those to 

be grouped together and points to an example which provides 

grouping for a "defendant [who] is convicted of three counts of 

unlicensed dealing in firearms." U.S.S.G. § 3D1.2, comment, n.6 

(1993). Griswold maintains that the multiple counts of § 

922(a)(6) and § 924(a) (making false statements in connection 

with acquisition of a firearm) to which he pled guilty should be 

grouped together just as "three counts of unlicensed dealing in 

firearms" would be grouped together pursuant to §3D1.2(d). 

 We note that the guideline stipulated to in the instant 

case, § 2K2.1 (1990),6 does not provide for multiple violations, 

nor does it provide a means of accounting for more than one 

firearm. In contrast, § 2K2.2 (1990),7 which is specifically 

delineated as an offense that should group pursuant to subsection 

(d), makes provisions for incremental increases in offense levels 

based upon the number of firearms involved. It is to § 2K2.2 

that the commentary speaks when it states that "most . . . 

firearms offenses, and other crimes where the guidelines are 

based primarily on quantity or contemplate continuing behavior 

are to be grouped together." U.S.S.G. § 3D1.2, comment, n.6 

(1990). A defendant convicted of three counts of unlicensed 

dealing in firearms (conduct covered by U.S.S.G. § 2K2.2) has 

 

6. Section 2K2.1 of the 1990 U.S.S.G. deals with the "Unlawful 

Receipt, Possession, or Transportation of Firearms or 

Ammunition." 

7. Section 2K2.2 of the 1990 U.S.S.G. deals with "Unlawful 

Trafficking and Other Prohibited Transactions Involving 

Firearms." 
necessarily been punished in relation to the number of weapons 

involved, and thus grouping of the offenses would be appropriate. 

Because the guideline applicable in Griswold's case is U.S.S.G. § 

2K2.1, and not § 2K2.2, the underlying offense is not a crime 

that must be grouped pursuant to § 3D1.2(d). Stated differently, 

multiple counts of illegal acquisition of a firearm (punishable 

under § 2K2.1) need not be grouped simply because "three counts 

of unlicensed dealing in firearms" (punishable pursuant to § 

2K2.2) must be grouped pursuant to § 3D1.2(d).8

 B. Government's Failure to Adhere to Plea Agreement

 As an ancillary argument to his claim that the district 

court erred in failing to group the firearms offenses into one 

group, Griswold contends that "the government made what was at 

best a lukewarm endorsement of the stipulation it made as part of 

the plea agreement."9 Griswold cites United States v. Badaracco, 

 

8. In the 1991 guidelines version and henceforth, the Sentencing 

Commission consolidated the 1990 version of U.S.S.G. §§ 2K2.1, 

2K2.2, and 2K2.3 into the newly constructed § 2K2.1. At the same 

time, although U.S.S.G. § 2K2.1 was not previously specifically 

designated as an offense subject to grouping pursuant to § 

3D1.2(d) in the 1990 guidelines, in the 1991 and later guidelines 

versions it was so specifically designated. Thus, while 

Griswold's offenses should not be grouped pursuant to § 3D1.2(d) 

(1990), under § 3D1.2(d) (1993) the offenses must be grouped 

together. However, even if Griswold's offenses were grouped 

under the 1993 version, his sentence would still be more than if 

he was sentenced, but not grouped, under the 1990 version. We 

will assume that given the choice, Griswold would still opt to be 

sentenced under the 1990 guidelines. 

9. Griswold points to the following portion of the sentencing 

hearing to illustrate that the government did not fulfill its 

obligations under the plea agreement: 
(..continued) 

Mr. Becker: [T]here was a guilty plea reached 

in writing where both parties, the 

Government and Mr. Griswold, agreed 

that Counts 1 through 8 of the 

indictment constitute a single 

group for purposes of application 

of this rule. 

 . . . . 

AUSA Winter: Your Honor, the Government does 

have to concede that both counsel 

and I may have been in error in our 

stipulation as to the grouping. 

However, at the same time, the 

Government recognizes that we did 

the stipulation with the defendant 

and to some degree, if there is 

support -- albeit, a generous 

interpretation of that support --

if there is support for that 

interpretation, I believe the Court 

would be within its bounds to find 

the offense level in accord with 

the stipulation.

 I say that because I don't think 

that the Probation Department is 

wrong in their grouping and I don't 

wish to suggest that they are. But 

at the same time, the Government 

recognizes that groupings are a 

factor that are usually best left 

to the discretion of the trial 

court, who makes factual 

determinations and that there is, I 

guess, some room for -- for 

movement or some room for 

interpretation on how those are 

grouped. 

 I am in accord with the defense 

that there is an Eastern District 

of Pennsylvania opinion that does 

lend support to his argument, 

Pellowitz. There is a distinction 

in that case from the instant case, 

that is, it involved a dealer of 

firearms, which involved a 
954 F.2d 928 (3d Cir. 1992), for the proposition that the 

government is not permitted to make statements that effectively 

undermine guidelines stipulations it enters under U.S.S.G. § 

6B1.4 as part of a plea agreement. In that case, the government 

stipulated that the defendant's conduct did not involve more than 

minimal planning. The probation office, however, found that the 

defendant's offense did involve more than minimal planning and 

recommended a two point enhancement in the base offense level, to 

which the district court agreed. Id. at 938-39. On appeal, the 

defendant argued that statements made by the government at 

(..continued) 

different guidelines section and, 

in fact, one that is specifically 

included in 3D1.2 Group D for 

grouping, whereas the guideline in 

this offense was not specifically 

included in Section D of 3D1.2. 

 I guess I don't want to -- I guess 

I'm trying to be very frank with 

the Court, because I am requesting 

an upward departure of the 

defendant and the Government does 

not wish to seem unseemly and seize 

upon any opportunity to justify a 

higher level by first agreeing to 

stipulate with the defendant and 

then turn around and say, you know 

what, I was wrong and you're -- and 

you're stuck with a higher 

guidelines level and I'm going to 

upwardly depart. I -- I want to be 

fair to the defendant and in -- in 

bending over backwards to be fair 

and giving a very generous 

interpretation to this, I think the 

Court could find all of the 

grouping.

App. at 26-28 (emphasis added). 
sentencing were violative of the plea agreement because the 

government's conduct was inconsistent with what he understood 

when entering the plea of guilty. Id. at 939. We concluded 

that: 

 The comment by the attorney for the 

government that "there was an affirmative 

step taken by [the defendant] indicating that 

he was concealing something" provided the 

district court with a basis to reject the 

government's stipulation in its plea 

agreement and to adopt the probation 

department's recommendation that there was 

more than minimal planning by [the 

defendant]. We therefore agree with [the 

defendant] that the government violated the 

spirit, if not the letter, of the plea 

agreement. 

Id. at 940 (footnote omitted). 

 In the case before us, the government was not trying to 

urge the district court to adopt the recommendation of the 

probation office. Quite the contrary, the government was simply 

pointing up to the court an obvious conflict which existed 

between the plea agreement and the probation report, and 

explaining to the court why it would be "within its bounds to 

find the offense level in accord with the stipulation" in the 

plea agreement. Because we conclude that Badaracco is 

distinguishable and we find that the government's conduct at 

sentencing was not inconsistent with the terms of the plea 

agreement, we will not remand this case for resentencing. 

 Additionally, Griswold argues that the government on 

appeal has totally repudiated the stipulation upon which he 

relied in entering the plea agreement. However, we note that the 
plea agreement specifically provided that, "[n]othing in this 

agreement shall limit the government in its comments in, and 

responses to, any post-sentencing matters." App. at 18. Thus, 

the government did not act contrary to the plea agreement when, 

on appeal, it argued that the district court did not err in 

grouping the offenses into five separate groups.10 

 C. The "One Book Rule"

 As part of the calculation of Griswold's sentence, the 

district court granted the two-level reduction for acceptance of 

responsibility available under the 1990 guidelines. See U.S.S.G. 

§ 3E1.1(a) (1990). Griswold now argues that the district court 

erred because it did not grant him a three-level downward 

adjustment -- the maximum reduction available for acceptance of 

responsibility under the 1993 version of the guidelines. Section 

1B1.11 of the United States Sentencing Guidelines states in 

relevant part: 

 

10. Additionally, the government reserved its right to argue 

contrary to the stipulation on appeal: 

AUSA Winter: Your honor, I just want to note for 

the record that by conceding that 

the defense's argument on the 

grouping issue had some merit, the 

Government is not waiving its right 

to argue subsequently on appeal, 

that your Honor was not in error by 

grouping as you did. I simply 

wanted to state that for the 

record. 

App. at 119. 
 (a) The court shall use the Guidelines 

Manual in effect on the date that 

the defendant is sentenced. 

 (b)(1) If the court determines that use of 

the Guidelines Manual in effect on the date 

that the defendant is sentenced would violate 

the ex post facto clause of the United States 

Constitution, the court shall use the 

Guidelines Manual in effect on the date that 

the offense of conviction was committed. 

 (2) The Guidelines Manual in effect on a 

particular date shall be applied in its 

entirety. The court shall not apply, for 

example, one guideline section from one 

edition of the Guidelines Manual and another 

guideline section from a different edition of 

the Guidelines Manual. However, if a court 

applies an earlier edition of the Guidelines 

Manual, the court shall consider subsequent 

amendments, to the extent that such 

amendments are clarifying rather than 

substantive changes. 

U.S.S.G. § 1B1.11 (1993). Thus, Griswold maintains that the 

district court violated the mandate of § 1B1.11(a) which requires 

application of the 1993 guidelines. However, because the use of 

the § 2K2.1 would violate the ex post facto clause, the district 

court applied the 1990 guidelines and then chose to follow § 

1B1.11(b)(2) when calculating the number of points for acceptance 

of responsibility under § 3E1.1.11

 The question before the court is whether § 1B1.11(b)(2) 

(the "one book rule") supersedes § 1B1.11(a) (use guidelines 

effective on the date of sentencing) when the court is forced 

 

11. As indicated above, § 1B1.11(b)(2) requires that only one 

guideline manual should be applied to any given sentencing. This 

rule has become known in sentencing guidelines parlance as the 

"one book rule." 
because of ex post facto reasons to use an earlier version of the 

guidelines. Quite recently, in United States v. Corrado, __ F.3d 

__, No. 93-2086, 1995 WL 262608 (3d Cir. May 8, 1995), we had the 

opportunity to decide this very issue. In adopting the "one book 

rule" and bringing the Court of Appeals for the Third Circuit in 

conformity with the majority of other courts of appeals, we held: 

 [§ 1B1.11(b)(2)] expressly prohibits district 

courts from doing precisely what [the 

defendant] suggests the district court here 

should have done -- namely, to mix and match 

provisions from different versions of the 

guidelines in order to tailor a more 

favorable sentence. Because of its 

prohibitive nature, as well as the fact that 

we believe applying various provisions taken 

from different versions of the guidelines 

would upset the coherency and balance the 

Sentencing Commission obviously intended in 

promulgating the guidelines, we conclude that 

section § 1B1.11(b)(2) is binding and, as 

such, was properly followed by the district 

court in this case. 

Corrado, 1994 WL 262608, at *2 (citation omitted). Because 

Corrado is directly on point, we will affirm the district court's 

application of the "one book rule." 

 V. CONCLUSION 

 We conclude that the district court did not err in 

applying and interpreting the Sentencing Guidelines, and we will 

affirm the sentence of Griswold in all respects.