United States v. Giordano, No. 03-1394, 2006 WL 522236 (2d Cir. March 3, 2006)
Giordano argued that the enhancement under U.S.S.G. 3B1.3 for abuse of public trust and the offense characteristic enhancement under U.S.S.G. 2H1.1(b) for acting while a public official represent impermissible double counting. The Second Circuit disagreed because double counting "is permissible in calculating a Guidelines sentence where . . . each of the multiple Guidelines sections applicable to a single act serves a distinct purpose or represents a discrete harm." Here, the Second Circuit found that the enhancement for abuse of public trust "reflects the increased culpability of persons who take undue advantage of a position of trust and discretion (which may be public or private) to commit crimes with a greater chance of impunity." By contrast, the offense characteristic enhancement under U.S.S.G. 2H1.1(b) for acting while a public official "vindicates a distinct interest, namely the compelling public interest in deterring and adequately punishing those who violate civil rights under color of law, and does not preclude separate enhancements intending to capture a victim's increased vulnerability to [the] defendant's illegal conduct." Thus, the Second Circuit found no impermissible double counting.