of subsection (d), the district court need not even reach the second part of the inquiry if the offenses are not aggregable under the threshold test. The bulk of the courts to have considered the proper construction of subsection (d) have concluded that there is no automatic grouping of counts simply because those counts are on the “are to be grouped” list. See United States v. Taylor, 984 F.2d 298, 303 (9th Cir.1993); United States v. Seligsohn, 981 F.2d 1418, 1425 (3d Cir.1992); United States v. Harper, 972 F.2d 321, 322 (11th Cir.1992); United States v. Johnson, 971 F.2d 562, 576 (10th Cir.1992). Most of these courts have held that where the applicable Guidelines sections for separate counts measure the harm differently, those counts need not be grouped. Taylor, 984 F.2d at 303 (<HOLDING>); Harper, 972 F.2d at 322 (noting that crimes
holding that grouping under section 3d12d is not appropriate when the guidelines measure harm differently holding that the trial court may not retain jurisdiction over a sentence when the defendant is sentenced under the guidelines holding that section 4a12 is a broadly applicable section of the guidelines holding that the preponderance standard is generally appropriate in guidelines sentencing recognizing that the epa can consider the section 404b1 guidelines when acting under section 404c