the guidelines requires the court to group the related counts, determine the applicable offense level for each group, and then determine the combined offense level based on the groupings. § 1B1.1(d). In the instant case, all three counts are closely related. They involve substantially the same harm because they relate to the same victim and the same criminal objective. Therefore, they are properly grouped together. § 3D1.2.
The government argues that Count III should not be grouped with Counts I and II because the victim in Count III is different from the victims in the other counts. The government contends that the victims in Counts I and II are "society at large" and the court system, while the victim in Count III is the U.S. Attorney's Office. The court rejects this argument. With respect to all counts, the victim is society. The U.S. Attorney's Office, as a representative of society, cannot reasonably be construed as a victim separate from society with respect to any offense committed by Berkowitz. Accordingly, Count III is properly grouped together with Counts I and II.
Pursuant to § 3D1.3, the offense level for any group is the highest offense level of any count in the group. In the instant case, Counts I and II have the highest offense level -- 22. Thus, that level applies to the group. In addition, since all of the charges in Berkowitz's indictment constitute a single group, level 22 represents Berkowitz's combined offense level. Due to the single grouping, Berkowitz's combined offense level is not adjusted upward, even though he is charged with separate counts. § 3D1.4.
3. Acceptance of Responsibility
Pursuant to § 3D1.5 of the guidelines, Berkowitz's combined offense level becomes his total offense level unless Berkowitz can show he is entitled to the adjustment in § 3E1.1. Under § 3E1.1, a defendant is entitled to a reduction of two levels from his combined offense level if he demonstrates an acceptance of personal responsibility for his criminal conduct. However, based on Berkowitz's perjured testimony at trial, the court finds that Berkowitz has not accepted responsibility for the crimes he committed. See official comment 4 to § 3E1.1. Although Berkowitz now claims that he has in fact accepted responsibility for his offenses, Berkowitz's eleventh hour manifestation of that responsibility is insufficient to entitle him to the reduction provided by § 3E1.1. See official comment 1(g) to § 3E1.1. Therefore, Berkowitz's total offense level is the same as his combined offense level -- 22.
4. Criminal History Category
Under ordinary circumstances, a defendant's criminal history category is determined by assigning point values to the defendant's past incidents of criminal behavior, adding these point values, and referring to the sentencing table to obtain the category associated with the aggregate point value. § 4A1.1. Under this method, Berkowitz falls within criminal history category I. Since Berkowitz has only one prior sentence -- his 1977 probation -- Berkowitz's criminal history amounts to only one point when § 4A1.1 is applied. This point total is associated with criminal history category I.
However, in this case, straight application of § 4A1.1 is not appropriate. Under § 4A1.3, the court may depart from the criminal history category calculated pursuant to § 4A1.1 where "reliable information indicates that the criminal history category does not adequately reflect the seriousness of defendant's past criminal conduct. . . . Such information may include . . . whether defendant was pending trial . . . on another charge at the time of the instant offense. . . ." Section 4A1.3 further provides:
A departure under this provision is warranted when the criminal history category significantly under-represents the seriousness of the defendant's criminal history. . . . Examples might include the case of a defendant who . . . committed the instant offense while on bail or pretrial release for another serious offense.