Section 3D1.4 provides that for 3 1/2 to 5 units, the offense level is increased 4 levels; similarly, for more than 5 units, the offense level is increased by 5. Thus, the section does not ignore or discount a sixth charged offense. See United States v. Pearson, 911 F.2d 186, 190 (9th Cir. 1990) (stating that under § 3D1.4, defendant's first six offenses were taken into account while the seventh and eighth were not considered in the guideline prior to departure); United States v. Chase, 894 F.2d 488, 491 (1st Cir. 1990) (noting that § 3D1.4 encompasses six counts of bank robbery, but upward departure necessary where defendant had nine additional counts to which he had pleaded guilty). See supra note 2 for the pertinent language of § 3D1.4.

Only three published opinions (involving three different United States Courts of Appeals), deal with USSG Section(s) 3D1.4 departures for numerous offenses. See United States v. Okane, 52 F.3d 828 (10th Cir. 1995); United States v. Pearson, 911 F.2d 186 (9th Cir. 1990); United States v. Chase, 894 F.2d 488 (1st Cir. 1990). Under plenary review (and with little comment), the Chase court found 9 uncounted robberies significant while the Okane court found five uncounted robberies significant.

(n. 10). The court found further support for its view in United States v. Chase, 894 F.2d 488 (1st Cir. 1990). There, the defendant was convicted of 15 counts of bank robbery comprising 15 possible offense units, but the multiple count adjustment provision was capped at a five level enhancement for defendants with "more than 5" offense units.

A survey of cases from other circuits shows how many units are significantly more than five, and how great of a departure they justify. See United States v. Wolfe, 309 F.3d 932, 935 (6th Cir. 2002) (ten units justified two-level upward departure); United States v. Szabo, 176 F.3d 930, 933 (7th Cir.) (nine units justified three-level upward departure), cert. denied, 528 U.S. 912, 120 S.Ct. 262, 145 L.Ed.2d 220 (1999); United States v. MacLeod, 80 F.3d 860, 865-66, 869 (3d Cir. 1996) (ten units justified two-level upward departure); United States v. Okane, 52 F.3d 828, 832-33 (10th Cir. 1995) (ten units justified one-level upward departure); United States v. Pearson, 911 F.2d 186, 189-90 (9th Cir. 1990) (eight units justified one-level upward departure); United States v. Chase, 894 F.2d 488, 491 (1st Cir. 1990) (fifteen units justified five-level upward departure). We have no difficulty concluding that Courtney's offenses of conviction, combined with his other admitted relevant conduct offenses, resulted in significantly more than five units.

Id. at 190 n. 4. Similarly, the First Circuit took note of the "Sentencing Commission's model of `declining marginal punishments'," yet concluded that an upward departure from a range of 57 to 71 months to 120 months was justified for an offender who pled guilty to 14 counts of bank robbery and one count of attempted bank robbery. United States v. Chase, 894 F.2d 488, 492 (1st Cir. 1990). The Third Circuit decided that a departure was appropriate to account for four victims (equated there with four groups of offenses and, therefore, "units" pursuant to 3D1.4) of a child pornographer not otherwise resulting in additional punishment because of the maximum five-level increase.

The choice of the divisor is an exercise of judgment that an appellate court will not disturb unless it exceeds the bounds of reason. United States v. Chase, 894 F.2d 488, 491-92 (1st Cir. 1990); but cf. United States v. Pearson, 911 F.2d 186, 190-91 (9th Cir. 1990). The argument, rather, is that the grouping provision (section 3D1.4) is limited to convicted crimes (or to stipulations of crimes). U.S.S.G. ch. 3, pt. D, introductory comment; United States v. Dawson, supra, 1 F.3d at 463; United States v. White, 888 F.2d 490, 496 (7th Cir. 1989); United States v. Paccione, 949 F.2d 1183, 1205 (2d Cir. 1991); United States v. Blanco, 888 F.2d 907, 909-10 (1st Cir. 1989).

We have no trouble concluding Mr. Okane's pleas of guilty to five additional bank robbery charges, which did not amount to additional units under § 3D1.4, nonetheless constitute sufficiently unusual circumstances to support an upward departure under step one. Under similar circumstances involving a defendant who pled guilty to fifteen counts of robbery, only five of which were expressly counted as units under § 3D1.4, the First Circuit stated "[w]ithout question, the circumstance relied on by the district court [i.e., the remaining ten robbery convictions] to justify departure from the Guidelines — the large additional number of bank robberies committed by defendant — is sufficiently `unusual' to justify a departure." United States v. Chase, 894 F.2d 488, 491 (1st Cir. 1990). By pleading guilty to these five additional robberies, we find the record contains a sufficient factual basis to satisfy step two of our review.

In such instances, upward departures can be employed to correct imbalances. See id.; see also United States v. Russell, 905 F.2d 1450, 1454-55 (10th Cir. 1990); United States v. Roberson, 872 F.2d 597, 606-07 (5th Cir.), cert. denied, ___ U.S. ___, 110 S.Ct. 175, 107 L.Ed.2d 131 (1989); cf. United States v. Chase, 894 F.2d 488, 490-91 (1st Cir. 1990) (upward departure available where many robberies not adequately taken into account by multiple count adjustment). B

Diaz-Villafane, 874 F.2d at 49. See also United States v. Delloiacono, 900 F.2d 481 (1st Cir. 1990); United States v. Chase, 894 F.2d 488, 490-92 (1st Cir. 1990). In this case, we need go no further than the first step.

Id. See United States v. Chase, 894 F.2d 488, 490-91 (1st Cir. 1990). See generally U.S.S.G. Ch. 5, Pt. K.