Three Steps to One Level When There Are Many Counts

On November 6, 2026, the U.S. Sentencing Commission posted Sentencing Practice Talk, Episode 43, titled "Sort, Calculate, Select." Staff use that episode to explain a rule that took effect on November 1. The rule is Amendment 840. It is now USSG §3D1.1 in the 2026 Guidelines Manual. Five guidelines that used to fill Chapter Three, Part D are gone. One guideline now produces a single offense level for every count of conviction.

What the three steps do

Section 3D1.1 sorts the counts, calculates a level for each group, and keeps the highest of those levels. The November 6 episode title uses the same three words. The legal steps are the subsections.

Sort. Counts that use the same guideline go together, and only if that guideline is on a list in §3D1.1. One list adds the harm together. Another list can add extra levels. A count on neither list is scored on its own.

Calculate. Each group gets one offense level. The method depends on which list the guideline is on.

Select. Subsection (d) says the offense level for all the counts is the highest level any group produced. The court does not stack those group levels on top of one another.

The counts can sit in one indictment. They can also sit in different indictments, if the sentences are imposed at the same time or in one consolidated proceeding (§3D1.1, comment. (n.1)).

Counts that are added together

Subsection (a) is for guidelines whose level comes mostly from a total: dollars, drug quantity, or some other combined harm. Fraud under §2B1.1, drug trafficking under §2D1.1, firearms under §2K2.1, and tax under §2T1.1 are on that list. The full list is printed in §3D1.1(a).

For those counts, the court uses "the combined offense behavior taken as a whole." Two fraud counts do not pick up extra levels merely because there are two counts. The dollars, or the other harm, are put together, and that total drives the level. The Commission says this list is the same set of guidelines that used to be aggregated under the old §3D1.2(d).

The dollar cutoffs in the fraud table changed the same day. Our note on the 2026 fraud-loss amendment covers those amounts. This post is only the multiple-count steps.

Counts that can add levels

Subsection (b) covers many crimes against a person, plus a few other guidelines. It includes Chapter Two, Part A, except §2A3.5, along with robbery (§2B3.1), sexual exploitation of a minor (§2G2.1), and the rest of the list in §3D1.1(b).

Three conditions all have to be true:

• the counts use the same guideline;
• that guideline is on the subsection (b) list; and
• the counts involve different victims, or the same victim on different occasions.

The court scores each of those counts on its own, finds the highest one, and then adds levels from this table (§3D1.1(b)(2)):

• 2 counts: add 2 levels
• 3 counts: add 3 levels
• 4 or 5 counts: add 4 levels
• 6 or more counts: add 5 levels

The commentary uses two robberies of the same person, several days apart, as a case that can take this increase. A conspiracy count and a completed robbery of that same person on the same occasion do not. That is one victim on one occasion (§3D1.1, comment. (n.4)).

The increase runs only across counts that share one guideline. The commentary's illustration is two counts of impeding a federal officer, each naming a different officer, plus a separate burglary count. The two-level increase applies to the impeding counts. The burglary count is scored on its own. The court then keeps the higher of those two results (§3D1.1, comment. (n.3(B))).

The level the court keeps

If a count is on neither list, subsection (c) scores that count by itself.

Subsection (d) then keeps only the highest result: the subsection (a) group, the subsection (b) group, or any subsection (c) count. In most cases only one subsection applies. Sometimes two apply. All three apply only in rare cases (§3D1.1, comment. (n.3)).

The commentary's wire-fraud illustration is two wire-fraud counts and one tax-evasion count. Both guidelines are on the subsection (a) list, but subsection (a) combines only counts that use the same guideline. The wire-fraud counts (§2B1.1) are combined. The tax count (§2T1.1) is scored under subsection (c). The single level is the higher of those two results. It is not the sum (§3D1.1, comment. (n.3(A))).

That combined level is not the last number in the calculation. Acceptance of responsibility, an early-disposition reduction, and the Chapter Four rules, including career offender and the zero-point adjustment, come after it (§3D1.1, comment. (background)). Our offense level page shows where this step sits.

Counts the rule skips

Subsection (e) leaves two kinds of counts out of this math.

The first is a count whose statute both sets a prison term and requires that term to run consecutively to any other prison term. The commentary's example is one bank-robbery count under 18 U.S.C. § 2113 and one firearm count under 18 U.S.C. § 924(c). Those counts are not combined. The robbery level is figured without the weapon increase in §2B3.1(b)(2). In that example, the §924(c) count is the five-year minimum, and that term runs consecutive to the guideline sentence on the robbery (§3D1.1, comment. (n.2); USSG §5G1.2(a)). Section 924(c) sets other minimums for other facts. The example is the five-year term.

A statute that requires a consecutive term only when the court imposes prison, and does not otherwise require prison, stays inside the multiple-count rules unless a guideline says otherwise. The commentary names failure to appear under 18 U.S.C. § 3146 as one of those statutes.

The second exclusion is a count under 18 U.S.C. § 1028A, aggravated identity theft. That count stays out of the §3D1.1 level. How to impose more than one §1028A count is in Application Note 2(B) to §5G1.2.

What did not change

The Commission said the rewrite was meant to be largely outcome neutral. It estimated that 93 percent of the nearly 11,000 multiple-count cases from fiscal year 2024, and 99 percent of all cases sentenced that year, would have had no change in sentence under the new rule. Where the final offense level did move, the Commission observed that the average change in the sentence imposed, across all multiple-count cases, would have been less than one month, from an average of 99.5 months to 98.9 months. Those figures are the Commission's look back at fiscal year 2024. They do not predict the sentence in any one case. The reason for Amendment 840 states them.

Relevant conduct did not get a new reach. The amendment moved the old §3D1.2(d) list into USSG §1B1.3(d). The Commission said it intends relevant conduct to work the same way it did before, even though the text looks different.

Amendment 840 is not on the list of amendments that can support a lower sentence under 18 U.S.C. § 3582(c)(2). That list, in USSG §1B1.10(d), still ends with amendment 821. A person already sentenced does not get a new range from this rewrite alone.

The guidelines have been advisory since United States v. Booker, 543 U.S. 220 (2005). After the court finds this level and the range, it weighs the § 3553(a) factors. A sentence outside the range is a variance. See departures and variances.

Which Manual the court uses

The court uses the Guidelines Manual in effect on the day of sentencing (USSG §1B1.11(a)). If that Manual would raise the range, and using it would violate the ex post facto clause, the court uses the Manual in effect when the offense was committed (§1B1.11(b)(1); Peugh v. United States, 569 U.S. 530 (2013)). The court applies one Manual as a whole (§1B1.11(b)(2)). Compare both Manuals when more than one count could move the level.

Who it affects

• A sentencing on or after November 1, 2026, with more than one count. The presentence report should cite §3D1.1, not the old §§3D1.2 through 3D1.5.
• Fraud, drugs, firearms, or tax on more than one count that uses the same guideline. The harm is combined. The number of counts, by itself, does not add the subsection (b) levels.
• Robbery, assault, or sexual abuse involving different victims, or the same victim on different days. The table in §3D1.1(b)(2) can add 2 to 5 levels onto the highest of those counts.
• A §924(c) count or a §1028A count. Those counts stay outside the combined level. The statute still controls whether the term runs consecutively.
• A person already sentenced. Amendment 840 is not a basis for a § 3582(c)(2) reduction. The Commission did not put it on the §1B1.10(d) list.