BAC2210-40
UNITED STATES SENTENCING COMMISSION
SENTENCING GUIDELINES FOR UNITED STATES COURTS
(NOTE DATE CHANGE FOR PUBLIC HEARING: Disregard March 17 hearing date printed in the notice below. The new date is March 18, 1997, at 9:30 a.m.)
AGENCY:United States Sentencing Commission
ACTION:Notice of (1) proposed temporary, emergency guideline amendments increasing penalties for alien smuggling and fraudulent use of government-issued documents; (2) proposed temporary, emergency guideline amendments imposing penalties for involuntary servitude, peonage, and slave trade offense; (3) proposed temporary, emergency guideline amendments increasing the penalties for offenses involving list I chemicals; and (4) proposed non-emergency amendments to sentencing guidelines and commentary. Request for Comment. Notice of hearing.
SUMMARY: The Sentencing Commission hereby gives notice of the following actions: (1) pursuant to its authority under sections 203, 211, and 218 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the Commission is preparing to promulgate amendments to §§2L1.1, 2L2.1, 2L2.2, and 2H4.1 and accompanying commentary; (2) pursuant to its authority under section 302 of the Comprehensive Methamphetamine Control Act of 1996, the Commission is preparing to promulgate amendments to §2D1.11 and accompanying commentary; and (3) pursuant to section 217(a) of the Comprehensive Crime Control Act of 1984 (28 U.S.C. § 994 (a) and (p)), the Commission is considering promulgating certain other non-emergency amendments to the sentencing guidelines and commentary. The Commission may submit the latter, non- emergency amendments to the Congress not later than May 1, 1997.
This notice sets forth the emergency and other proposed amendments and a synopsis of the issues addressed by the amendments as well as additional issues for comment. The proposed amendments are presented in this notice in one of two formats. First, some of the amendments are proposed as specific revisions to a guideline or commentary. Bracketed text within a proposed amendment indicates alternative proposals and that the Commission invites comment and suggestions for appropriate policy choices; for example, a proposed enhancement of [3-5] levels means a proposed enhancement of either three, four, or five levels. Similarly, a proposed enhancement of [4] levels indicates that the Commission is considering, and invites comment on, alternative policy choices. Second, the Commission has highlighted certain issues for comment and invites suggestions for specific amendment language.
DATES:(1) Emergency Amendments. Comment on the several emergency amendments set forth in this notice should be received by the Commission not later than February 4, 1997. After considering any public comment, the Commission plans to address possible promulgation of the emergency amendments at its meeting scheduled for February 11, 1997, at the Commission's offices in the Thurgood Marshall Federal Judiciary Building (meeting time to be determined). 2) Non-Emergency Amendments. Comment on the non-emergency amendments and issues set forth in this notice should be received not later than March 17, 1997. The Commission has scheduled a public hearing on the proposed non-emergency amendments for March 17, 1997, at the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, N.E,. Washington, D.C. 20002-8002.
A person who desires to testify at the public hearing should notify Michael Courlander, Public Information Specialist, at (202) 273-4590 not later than March 3, 1997. Written testimony for the hearing must be received by the Commission not later than March 10, 1997. Submission of written testimony is a requirement for testifying at the public hearing.
ADDRESS: Public Comment should be sent to: United States Sentencing Commission, One Columbus Circle, N.E., Suite 2-500, Washington, D.C. 20002-8002, Attention: Public Information.
FOR FURTHER INFORMATION CONTACT:Michael Courlander, Public Information Specialist, Telephone:(202) 273-4590.
Authority.28 U.S.C. § 994 (a), (o), (p), (x).
Richard P. Conaboy,
Chairman
§2D1.11Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt or Conspiracy
1. Synopsis of Proposed Amendment: This amendment implements section 302 of the Comprehensive Methamphetamine Control Act of 1996. That section raises the statutory maximum penalties under 21 U.S.C. §§ 841(d) and 960(d) from ten to twenty years' imprisonment. The Act also instructs the Commission to increase by at least two levels the offense levels for offenses involving list I chemicals under 21 U.S.C. §§ 841(d)(1) and (2) and 960(d)(1) and (3). These offenses involve the possession and importation of listed chemicals knowing, or having reasonable cause to believe, the chemicals will be used to unlawfully manufacture a controlled substance. In carrying out these instructions, the Act requires that the offense levels be calculated proportionately on the basis of the quantity of controlled substance that reasonably could be manufactured in a clandestine setting using the quantity of list I chemical possessed, distributed, imported, or exported.
Current Operation of the Guidelines: Offenses involving violations under the above statutes are covered under §2D1.11 (Unlawfully, Distributing, Importing, Exporting, or Possessing a Listed Chemical ). This guideline uses a Chemical Quantity Table to determine the base offense level. The guideline also has a cross reference to §2D1.1 (Unlawfully Manufacturing, Importing, Exporting, or Trafficking ) for cases involving the actual manufacture, or attempt to manufacture, a controlled substance.
The Chemical Quantity Table was developed in two steps. First, the amount of listed chemical needed to produce a quantity of controlled substance in the Drug Quantity Table in §2D1.1 was determined. The amount of listed chemical was based on 50% of theoretical yield(1). The 50% figure was used because, after much study, this figure was determined to be a fair estimate of the amount of controlled substance that typically could be produced in a clandestine laboratory.
Second, the offense level in §2D1.11 was adjusted downward by eight levels from the level in the Drug Quantity §2D1.1. There were several reasons for these adjustments. One, the listed chemical offenses involved an intent to manufacture a controlled substance, not the actual manufacture, or attempt to manufacture, a controlled substance. For cases involving an actual or attempted manufacture of a controlled substance, §2D1.11 contains a cross reference to §2D1.1. Another reason for the reduction in offense level from the offense levels in §2D1.1 was the fact that statutes covering listed chemicals had maximum sentences of ten years' imprisonment, whereas some of the controlled substance offenses had maximum sentences of life imprisonment. If the offense level was not reduced in §2D1.11, almost all of the cases would have resulted in sentences at or exceeding the statutory maximum. A third reason was that it is more difficult to make an accurate determination of the amount of finished product based on only one listed chemical as opposed to several listed chemicals and/or lab equipment. By not reducing the offense level, there would have been the possibility that the person who had only one precursor would get a higher offense level than someone who actually manufactured the controlled substance.
The proposed amendment raises the penalties for list I chemicals by two levels. The top of the Chemical Quantity Table for list I chemicals will now be at level 30. The offense level for list II chemicals remains the same. With the new statutory maximum of 20 years, the guidelines will now be able to better take into account aggravating adjustments such as those for role in the offense. Additionally, the increased statutory maximum will allow for higher sentences for cases convicted under this statute that involve the actual manufacture of a controlled substance.
Proposed Amendment: Section 2D1.11(d) is amended by deleting subsections (d)(1) - (9) and inserting in lieu thereof the following:
"(d) CHEMICAL QUANTITY TABLE*
Listed Chemicals and Quantity Base Offense Level
(1) List I Chemicals Level 30
17.8 KG or more of Benzaldehyde;
20 KG or more of Benzyl Cyanide;
20 KG or more of Ephedrine;
200 G or more of Ergonovine;
400 G or more of Ergotamine;
20 KG or more of Ethylamine;
44 KG or more of Hydriodic Acid;
320 KG or more of Isoafrole;
4 KG or more of Methylamine;
500 KG or more of N-Methylephedrine;
500 KG or more of N-Methylpseudoephedrine;
12.6 KG or more of Nitroethane;
200 KG or more of Norpseudoephedrine;
20 KG or more of Phenylacetic Acid;
200 KG or more of Phenylpropanolamine;
10 KG or more of Piperidine;
320 KG or more of Piperonal;
1.6 KG or more of Propionic Anhydride;
20 KG or more of Pseudoephedrine;
320 KG or more of Safrole;
400 KG or more of 3, 4-Methylenedioxyphenyl-2-propanone;
(2) List I Chemicals Level 28
At least 5.3 KG but less than 17.8 KG of Benzaldehyde;
At least 6 KG but less than 20 KG of Benzyl Cyanide;
At least 6 KG but less than 20 KG of Ephedrine;
At least 60 G but less than 200 G of Ergonovine;
At least 120 G but less than 400 G of Ergotamine;
At least 6 KG but less than 20 KG of Ethylamine;
At least 13.2 KG but less than 44 KG of Hydriodic Acid;
At least 96 KG but less than 320 KG of Isoafrole;
At least 1.2 KG but less than 4 KG of Methylamine;
At least 150 KG but less than 500 KG of N-Methylephedrine;
At least 150 KG but less than 500 KG of N-Methylpseudoephedrine;
At least 3.8 KG but less than 12.6 KG of Nitroethane;
At least 60 KG but less than 200 KG of Norpseudoephedrine;
At least 6 KG but less than 20 KG of Phenylacetic Acid;
At least 60 KG but less than 200 KG of Phenylpropanolamine;
At least 3 KG but less than 10 KG of Piperidine;
At least 96 KG but less than 320 KG of Piperonal;
At least 480 G but less than 1.6 KG of Propionic Anhydride;
At least 6 KG but less than 20 KG of Pseudoephedrine;
At least 96 KG but less than 320 KG of Safrole;
At least 120 KG but less than 400 KG of 3, 4-Methylenedioxyphenyl-2- propanone;
List II Chemicals
11 KG or more of Acetic Anhydride;
1175 KG or more of Acetone;
20 KG or more of Benzyl Chloride;
1075 KG or more of Ethyl Ether;
1200 KG or more KG of Methyl Ethyl Ketone;
10 KG or more of Potassium Permanganate;
1300 KG or more of Toluene.
(3) List I Chemicals Level 26
At least 1.8 KG but less than 5.3 KG of Benzaldehyde;
At least 2 KG but less than 6 KG of Benzyl Cyanide;
At least 2 KG but less than 6 KG of Ephedrine;
At least 20 G but less than 60 G of Ergonovine;
At least 40 G but less than 120 G of Ergotamine;
At least 2 KG but less than 6 KG of Ethylamine;
At least 4.4 KG but less than 13.2 KG of Hydriodic Acid;
At least 32 KG but less than 96 KG of Isoafrole;
At least 400 G but less than 1.2 KG of Methylamine;
At least 50 KG but less than 150 KG of N-Methylephedrine;
At least 50 KG but less than 150 KG of N-Methylpseudoephedrine;
At least 1.3 KG but less than 3.8 KG of Nitroethane;
At least 20 KG but less than 60 KG of Norpseudoephedrine;
At least 2 KG but less than 6 KG of Phenylacetic Acid;
At least 20 KG but less than 60 KG of Phenylpropanolamine;
At least 1 KG but less than 3 KG of Piperidine;
At least 32 KG but less than 96 KG of Piperonal;
At least 160 G but less than 480 G of Propionic Anhydride;
At least 2 KG but less than 6 KG of Pseudoephedrine;
At least 32 KG but less than 96 KG of Safrole;
At least 40 KG but less than 120 KG of 3, 4-Methylenedioxyphenyl-2- propanone;
List II Chemicals
At least 3.3 KG but less than 11 KG of Acetic Anhydride;
At least 352.5 KG but less than 1175 KG of Acetone;
At least 6 KG but less than 20 KG of Benzyl Chloride;
At least 322.5 KG but less than 1075 KG of Ethyl Ether;
At least 360 KG but less than 1200 KG of Methyl Ethyl Ketone;
At least 3 KG but less than 10 KG of Potassium Permanganate;
At least 390 KG but less than 1300 KG of Toluene.
(4) List I Chemicals Level 24
At least 1.2 KG but less than 1.8 KG of Benzaldehyde;
At least 1.4 KG but less than 2 KG of Benzyl Cyanide;
At least 1.4 KG but less than 2 KG of Ephedrine;
At least 14 G but less than 20 G of Ergonovine;
At least 28 G but less than 40 G of Ergotamine;
At least 1.4 KG but less than 2 KG of Ethylamine;
At least 3.08 KG but less than 4.4 KG of Hydriodic Acid;
At least 22.4 KG but less than 32 KG of Isoafrole;
At least 280 G but less than 400 G of Methylamine;
At least 35 KG but less than 50 KG of N-Methylephedrine;
At least 35 KG but less than 50 KG of N-Methylpseudoephedrine;
At least 879 G but less than 1.3 KG of Nitroethane;
At least 14 KG but less than 20 KG of Norpseudoephedrine;
At least 1.4 KG but less than 2 KG of Phenylacetic Acid;
At least 14 KG but less than 20 KG of Phenylpropanolamine;
At least 700 G but less than 1 KG of Piperidine;
At least 22.4 KG but less than 32 KG of Piperonal;
At least 112 G but less than 160 G of Propionic Anhydride;
At least 1.4 KG but less than 2 KG of Pseudoephedrine;
At least 22.4 KG but less than 32 KG of Safrole;
At least 28 KG but less than 40 KG of 3, 4-Methylenedioxyphenyl-2-
propanone;
List II Chemicals
At least 1.1 KG but less than 3.3 KG of Acetic Anhydride;
At least 117.5 KG but less than 352.5 KG of Acetone;
At least 2 KG but less than 6 KG of Benzyl Chloride;
At least 107.5 KG but less than 322.5 KG of Ethyl Ether;
At least 120 KG but less than 360 KG of Methyl Ethyl Ketone;
At least 1 KG but less than 3 KG of Potassium Permanganate;
At least 130 KG but less than 390 KG of Toluene.
(5) List I Chemicals Level 22
At least 712 G but less than 1.2 KG of Benzaldehyde;
At least 800 G but less than 1.4 KG of Benzyl Cyanide;
At least 800 G but less than 1.4 KG of Ephedrine;
At least 8 G but less than 14 G of Ergonovine;
At least 16 G but less than 28 G of Ergotamine;
At least 800 G but less than 1.4 KG of Ethylamine;
At least 1.76 KG but less than 3.08 KG of Hydriodic Acid;
At least 12.8 KG but less than 22.4 KG of Isoafrole;
At least 160 G but less than 280 G of Methylamine;
At least 20 KG but less than 35 KG of N-Methylephedrine;
At least 20 KG but less than 35 KG of N-Methylpseudoephedrine;
At least 503 G but less than 879 G of Nitroethane;
At least 8 KG but less than 14 KG of Norpseudoephedrine;
At least 800 G but less than 1.4 KG of Phenylacetic Acid;
At least 8 KG but less than 14 KG of Phenylpropanolamine;
At least 400 G but less than 700 G of Piperidine;
At least 12.8 KG but less than 22.4 KG of Piperonal;
At least 64 G but less than 112 G of Propionic Anhydride;
At least 800 G but less than 1.4 KG of Pseudoephedrine;
At least 12.8 KG but less than 22.4 KG of Safrole;
At least 16 KG but less than 28 KG of 3, 4-Methylenedioxyphenyl-2- propanone;
List II Chemicals
At least 726 G but less than 1.1 KG of Acetic Anhydride;
At least 82.25 KG but less than 117.5 KG of Acetone;
At least 1.4 KG but less than 2 KG of Benzyl Chloride;
At least 75.25 KG but less than 107.5 KG of Ethyl Ether;
At least 84 KG but less than 120 KG of Methyl Ethyl Ketone;
At least 700 G but less than 1 KG of Potassium Permanganate;
At least 91 KG but less than 130 KG of Toluene.
(6) List I Chemicals Level 20
At least 178 G but less than 712 G of Benzaldehyde;
At least 200 G but less than 800 G of Benzyl Cyanide;
At least 200 G but less than 800 G of Ephedrine;
At least 2 G but less than 8 G of Ergonovine;
At least 4 G but less than 16 G of Ergotamine;
At least 200 G but less than 800 G of Ethylamine;
At least 440 G but less than 1.76 KG of Hydriodic Acid;
At least 3.2 KG but less than 12.8 KG of Isoafrole;
At least 40 G but less than 160 G of Methylamine;
At least 5 KG but less than 20 KG of N-Methylephedrine;
At least 5 KG but less than 20 KG of N-Methylpseudoephedrine;
At least 126 G but less than 503 G of Nitroethane;
At least 2 KG but less than 8 KG of Norpseudoephedrine;
At least 200 G but less than 800 G of Phenylacetic Acid;
At least 2 KG but less than 8 KG of Phenylpropanolamine;
At least 100 G but less than 400 G of Piperidine;
At least 3.2 KG but less than 12.8 KG of Piperonal;
At least 16 G but less than 64 G of Propionic Anhydride;
At least 200 G but less than 800 G of Pseudoephedrine;
At least 3.2 KG but less than 12.8 KG of Safrole;
At least 4 KG but less than 16 KG of 3, 4-Methylenedioxyphenyl-2- propanone;
List II Chemicals
At least 440 G but less than 726 G of Acetic Anhydride;
At least 47 KG but less than 82.25 KG of Acetone;
At least 800 G but less than 1.4 KG of Benzyl Chloride;
At least 43 KG but less than 75.25 KG of Ethyl Ether;
At least 48 KG but less than 84 KG of Methyl Ethyl Ketone;
At least 400 G but less than 700 G of Potassium Permanganate;
At least 52 KG but less than 91 KG of Toluene.
(7) List I Chemicals Level 18
At least 142 G but less than 178 G of Benzaldehyde;
At least 160 G but less than 200 G of Benzyl Cyanide;
At least 160 G but less than 200 G of Ephedrine;
At least 1.6 G but less than 2 G of Ergonovine;
At least 3.2 G but less than 4 G of Ergotamine;
At least 160 G but less than 200 G of Ethylamine;
At least 352 G but less than 440 G of Hydriodic Acid;
At least 2.56 KG but less than 3.2 KG of Isoafrole;
At least 32 G but less than 40 G of Methylamine;
At least 4 KG but less than 5 KG of N-Methylephedrine;
At least 4 KG but less than 5 KG of N-Methylpseudoephedrine;
At least 100 G but less than 126 G of Nitroethane;
At least 1.6 KG but less than 2 KG of Norpseudoephedrine;
At least 160 G but less than 200 G of Phenylacetic Acid;
At least 1.6 KG but less than 2 KG of Phenylpropanolamine;
At least 80 G but less than 100 G of Piperidine;
At least 2.56 KG but less than 3.2 KG of Piperonal;
At least 12.8 G but less than 16 G of Propionic Anhydride;
At least 160 G but less than 200 G of Pseudoephedrine;
At least 2.56 KG but less than 3.2 KG of Safrole;
At least 3.2 KG but less than 4 KG of 3, 4-Methylenedioxyphenyl-2- propanone;
List II Chemicals
At least 110 G but less than 440 G of Acetic Anhydride;
At least 11.75 KG but less than 47 KG of Acetone;
At least 200 G but less than 800 G of Benzyl Chloride;
At least 10.75 KG but less than 43 KG of Ethyl Ether;
At least 12 KG but less than 48 KG of Methyl Ethyl Ketone;
At least 100 G but less than 400 G of Potassium Permanganate;
At least 13 KG but less than 52 KG of Toluene.
(8) List I Chemicals Level 16
At least 107 G but less than 142 G of Benzaldehyde;
At least 120 G but less than 160 G of Benzyl Cyanide;
At least 120 G but less than 160 G of Ephedrine;
At least 1.2 G but less than 1.6 G of Ergonovine;
At least 2.4 G but less than 3.2 G of Ergotamine;
At least 120 G but less than 160 G of Ethylamine;
At least 264 G but less than 352 G of Hydriodic Acid;
At least 1.92 KG but less than 2.56 KG of Isoafrole;
At least 24 G but less than 32 G of Methylamine;
At least 3 KG but less than 4 KG of N-Methylephedrine;
At least 3 KG but less than 4 KG of N-Methylpseudoephedrine;
At least 75 G but less than 100 G of Nitroethane;
At least 1.2 KG but less than 1.6 KG of Norpseudoephedrine;
At least 120 G but less than 160 G of Phenylacetic Acid;
At least 1.2 KG but less than 1.6 KG of Phenylpropanolamine;
At least 60 G but less than 80 G of Piperidine;
At least 1.92 KG but less than 2.56 KG of Piperonal;
At least 9.6 G but less than 12.8 G of Propionic Anhydride;
At least 120 G but less than 160 G of Pseudoephedrine;
At least 1.92 KG but less than 2.56 KG of Safrole;
At least 2.4 KG but less than 3.2 KG of 3, 4-Methylenedioxyphenyl-2- propanone;
List II Chemicals
At least 88 G but less than 110 G of Acetic Anhydride;
At least 9.4 KG but less than 11.75 KG of Acetone;
At least 160 G but less than 200 G of Benzyl Chloride;
At least 8.6 KG but less than 10.75 KG of Ethyl Ether;
At least 9.6 KG but less than 12 KG of Methyl Ethyl Ketone;
At least 80 G but less than 100 G of Potassium Permanganate;
At least 10.4 KG but less than 13 KG of Toluene.
(9) List I Chemicals Level 14
At least 2.7 KG but less than 3.6 KG of Anthranilic Acid; At least 80.25 G but less than 107 G of Benzaldehyde;
At least 90 G but less than 120 G of Benzyl Cyanide;
At least 90 G but less than 120 G of Ephedrine;
At least 900 MG but less than 1.2 G of Ergonovine;
At least 1.8 G but less than 2.4 G of Ergotamine;
At least 90 G but less than 120 G of Ethylamine;
At least 198 G but less than 264 G of Hydriodic Acid;
At least 1.44 G but less than 1.92 KG of Isoafrole;
At least 18 G but less than 24 G of Methylamine;
At least 3.6 KG but less than 4.8 KG of N-Acetylanthranilic Acid;
At least 2.25 KG but less than 3 KG of N-Methylephedrine;
At least 2.25 KG but less than 3 KG of N-Methylpseudoephedrine;
At least 56.25 G but less than 75 G of Nitroethane;
At least 900 G but less than 1.2 KG of Norpseudoephedrine;
At least 90 G but less than 120 G of Phenylacetic Acid;
At least 900 G but less than 1.2 KG of Phenylpropanolamine;
At least 45 G but less than 60 G of Piperidine;
At least 1.44 KG but less than 1.92 KG of Piperonal;
At least 7.2 G but less than 9.6 G of Propionic Anhydride;
At least 90 G but less than 120 G of Pseudoephedrine;
At least 1.44 G but less than 1.92 KG of Safrole;
At least 1.8 KG but less than 2.4 KG of 3, 4-Methylenedioxyphenyl-2- propanone;
List II Chemicals
At least 66 G but less than 88 G of Acetic Anhydride;
At least 7.05 KG but less than 9.4 KG of Acetone;
At least 120 G but less than 160 G of Benzyl Chloride;
At least 6.45 KG but less than 8.6 KG of Ethyl Ether;
At least 7.2 KG but less than 9.6 KG of Methyl Ethyl Ketone;
At least 60 G but less than 80 G of Potassium Permanganate;
At least 7.8 KG but less than 10.4 KG of Toluene.
(10) List I Chemicals Level 12
Less than 2.7 KG of Anthranilic Acid;
Less than 80.25 G of Benzaldehyde
Less than 90 G of Benzyl Cyanide;
Less than 90 G of Ephedrine;
Less than 900 MG of Ergonovine;
Less than 1.8 G of Ergotamine;
Less than 90 G of Ethylamine;
Less than 198 G of Hydriodic Acid;
Less than 1.44 G of Isoafrole;
Less than 18 G of Methylamine;
Less than 3.6 KG of N-Acetylanthranilic Acid;
Less than 2.25 KG of N-Methylephedrine;
Less than 2.25 KG of N-Methylpseudoephedrine;
Less than 56.25 G of Nitroethane;
Less than 900 G of Norpseudoephedrine;
Less than 90 G of Phenylacetic Acid;
Less than 900 G of Phenylpropanolamine;
Less than 45 G of Piperidine;
Less than 1.44 KG of Piperonal;
Less than 7.2 G of Propionic Anhydride;
Less than 90 G of Pseudoephedrine;
Less than 1.44 G of Safrole;
Less than 1.8 KG of 3, 4-Methylenedioxyphenyl-2-propanone;
List II Chemicals
Less than 66 G of Acetic Anhydride;
Less than 7.05 KG of Acetone;
Less than 120 G of Benzyl Chloride;
Less than 6.45 KG of Ethyl Ether;
Less than 7.2 KG of Methyl Ethyl Ketone;
Less than 60 G of Potassium Permanganate;
Less than 7.8 KG of Toluene.
The Commentary to §2D1.11 captioned "Application Notes" is amended in Note 4(a) by deleting "three kilograms" and inserting in lieu thereof "300 grams"; by deleting "24" each time it appears and inserting in lieu thereof "26"; and by deleting "14" and inserting in lieu thereof "16".
2. Synopsis of Proposed Amendment: This amendment implements section 203 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Section 203 directs the Commission to amend the guidelines for offenses related to smuggling, transporting, or harboring illegal aliens. The legislation directs the Commission to:
"(A) increase the base offense level for such offenses at least 3 offense levels above the applicable level in effect on the date of the enactment of this Act;
(B) review the sentencing enhancement for the number of aliens involved (U.S.S.G. 2L1.1(b)(2)), and increase the sentencing enhancement by at least 50 percent above the applicable enhancement in effect on the date of the enactment of this Act;
(C) impose an appropriate sentencing enhancement upon an
offender with 1 prior felony conviction arising out of a separate and prior prosecution for an offense that involved the same or similar underlying conduct as the current offense, to be applied in addition to any sentencing enhancement that would otherwise apply pursuant to the calculation of the defendant's criminal history category; . . . [and an additional enhancement for 2 or more priors];
(E) impose an appropriate sentencing enhancement on a defendant who, in the course of committing an offense described in this subsection (i) murders or otherwise causes death, bodily injury, or serious bodily injury to a defendant; (ii) uses or brandishes a firearm or other dangerous weapon; or (iii) engages in conduct that consciously or recklessly places another in serious danger of death or serious bodily injury;
(F) consider whether a downward adjustment is appropriate if the offense is a first offense and involves the smuggling only of the alien's spouse or child . . ."
The amendment provides for a higher base offense level as required by the legislation. In addition, the amendment provides for new specific offense characteristics outlined in the legislation and adjusts the current specific offense characteristics as directed by the legislation. Finally, the amendment provides for clarifying commentary.
Proposed Amendment: Section 2L1.1(a)(1) is amended by deleting "20" and inserting in lieu thereof "[23-25]".
Section 2L1.1(a)(2) is amended by deleting "9" and inserting in lieu thereof "[12-14]".
Section 2L1.1(b) is amended by deleting:
"(1) If the defendant committed the offense other than for profit and the base offense level is determined under subsection (a)(2), decrease by 3 levels.
(2) If the offense involved the smuggling, transporting, or harboring of six or more unlawful aliens, increase as follows:
Number of Unlawful Aliens
Smuggled, Transported, or
Harbored Increase in Level
(A) 6-24 add 2
(B) 25-99 add 4
(C) 100 or more add 6.
(3) If the defendant is an unlawful alien who has been deported (voluntarily or involuntarily) on one or more occasions prior to the instant offense, and the offense level determined above is less than level 8, increase to level 8."
and inserting in lieu thereof:
"(1) If the offense involves the smuggling, transporting, or harboring only of the defendant's spouse or child, decrease by [2-3] levels.
(2) If the offense involved the smuggling, transporting, or harboring of three or more unlawful aliens, increase as follows:
Number of Unlawful Aliens
Smuggled, Transported, or
Harbored Increase in Level
(A) 3-5 add 1
(B) 6-11 add 3
(C) 12-24 add 5
(D) 25-99 add 7
(E) 100 or more add 9.
(3) [Option 1: If the defendant committed the instant offense subsequent to sustaining (A) one conviction for an immigration and naturalization offense, increase by 2 levels; or (B) two convictions for immigration and naturalization offenses each arising out of separate prosecutions, increase by 4 levels.]
[Option 2: If the defendant at the time of sentencing had been previously convicted of (A) one immigration and naturalization offense arising out of a separate and prior prosecution, increase by 2 levels; or (B) two immigration and naturalization offenses each arising out of separate prosecutions, increase by 4 levels.]
(4) (A) If a firearm was discharged, increase by 6 levels, but if the resulting offense level is less than level [22-24], increase to level [22-24];
(B) if a dangerous weapon (including a firearm) was brandished or otherwise used, increase by 4 levels, but if the resulting offense level is less than level [20-22], increase to level [20-22];
(C) if a dangerous weapon (including a firearm) was possessed, increase by 2 levels, but if the resulting offense level is less than level [18-20], increase to level [18-20].
[Option 1: (D) if the offense involved recklessly creating a substantial risk of death or serious bodily injury to another person, increase by 2 levels, but if the resulting offense level is less than level [18-20], increase to level [18- 20]].
[Option 2: (5)If the offense involved recklessly creating a substantial risk of death or serious bodily injury to another person, increase by 2 levels, but if the resulting offense level is less than level [18-20], increase to level [18-20].
(6) If any person died or sustained bodily injury as a result of the offense, increase the offense level accordingly:
(1) Bodily Injury add 2 levels
(2) Serious Bodily Injury add 4 levels
(3) Permanent or Life-Threatening Bodily
Injury add 6 levels
(4) Death add 8 levels
(c) Cross Reference
If any person was killed under circumstances that would constitute murder under 18 U.S.C. § 1111 had such killing taken place within the special maritime and territorial jurisdiction of the United States, apply the appropriate murder guideline from Chapter two, Part A, Subpart 1."
The Commentary to §2L1.1 captioned "Application Notes" is amended in Note 5 by deleting "dangerous or inhumane treatment, death or bodily injury, possession of a dangerous weapon, or".
The Commentary to §2L1.1 captioned "Application Notes is amended by inserting the following additional notes:
"[7. Under subsections (b)(4)(A) and (b)(4)(B), the defendant is accountable if (A) the defendant discharges, brandishes, or otherwise uses a firearm, or (B) another person discharges, brandishes, or otherwise uses a firearm and the defendant is aware of the presence of the firearm. Under subsection (b)(4)(C), the defendant is accountable if the defendant or another person possesses a dangerous weapon during the offense.]
8. Prior felony conviction(s) resulting in an adjustment under subsection (b)(3) are also counted for purposes of determining criminal history points pursuant to Chapter Four, Part A (Criminal History).
9. Reckless conduct triggering the adjustment from subsection(b)(5) can vary widely. Such conduct may include, but is not limited to, transporting persons in the trunk or engine compartment of a motor vehicle, carrying substantially more passengers than the rated capacity of a motor vehicle or vessel, or harboring persons in a crowded, dangerous, or inhumane condition. If the reckless conduct triggering the adjustment in subsection (b)(4)(C) includes only conduct related to fleeing from a law enforcement officer, do not apply an adjustment from §3C1.2 (Reckless Endangerment During Flight). [Do not apply the adjustment in subsection (b)(4)(D) if the reckless conduct that created a substantial risk of death or serious bodily injury includes only conduct related to weapon possession or use.]
10. An `immigration and naturalization offense' means any offense covered by Chapter 2, Part L.
11. For purposes of this section, the term "child" is defined at section 101(b)(1) of the Immigration and Nationality Act (8 U.S.C. § 1101(b)(1)) and "spouse" is defined at section 101(a)(35) of the Immigration and Nationality Act (8 U.S.C. § 1101(a)(35))."
The Commentary to §2L1.1 captioned "Background" is amended by deleting the following:
"A specific offense characteristic provides a reduction if the defendant did not commit the offense for profit. The offense level increases with the number of unlawful aliens smuggled, transported, or harbored."
The Commentary to §2L1.1 captioned "Background" is amended by inserting the following after "In large scale":
"smuggling or harboring".
3. Synopsis of Proposed Amendment: This amendment implements section 211 of the Illegal Immigration Reform and Immigrant Responsibility act of 1996. Section 211 directs the Commission to amend the guidelines for offenses related to the fraudulent use of government issued documents. The Commission is directed to:
"(A) increase the base offense level for such offenses at least 2 offense level above the level in effect on the date of the enactment of this Act;
(B) review the sentencing enhancement for the number of documents or passports involved (U.S.S.G. 2L2.1(b)(2)), and increase the upward enhancement by at least 50 percent above the applicable enhancement in effect on the date of the enactment of this Act;
(C) impose an appropriate sentencing enhancement upon an offender with 1 prior felony conviction arising out of a separate and prior prosecution for an offense that involved the same or similar underlying conduct as the current offense, to be applied in addition to any sentencing enhancement that would otherwise apply pursuant to the calculation of the defendant's criminal history category; . . . [and an additional enhancement for 2 or more priors];"
The amendment provides for a higher base offense level as required by the legislation. In addition, the amendment provides for a new specific offense characteristic for defendants who have one or more prior convictions for the same or similar conduct -- as outlined in the legislation -- and adjusts the current specific offense characteristics as directed by the legislation and consistent with other guidelines. Finally, the amendment provides for clarifying commentary.
Proposed Amendment: Section 2L2.1 is amended by deleting "9" and inserting in lieu thereof "[11-13]".
Section 2L2.1(b) is amended by deleting:
"(1) If the defendant committed the offense other than for profit, decrease by 3 levels.
(2) If the offense involved six or more documents or passports, increase as follows:
Number of
Documents/Passports Increase in Level
(A) 6-24 add 2
(B) 25-99 add 4
(C) 100 or more add 6."
and insert in lieu thereof:
"(1) [Option 1: If the defendant committed the offense other than for profit and had not been convicted of an immigration and naturalization offense prior to the commission of the instant offense, decrease by 3 levels.]
[Option 2: If the offense involves documents only related to the defendant's spouse or child, decrease by [2-3] levels.]
(2) If the offense involved three or more documents or passports, increase as follows:
Number of
Documents/Passports Increase in Level
(A) 3-5 add 1
(B) 6-11 add 3
(C) 12-24 add 5
(D) 25-99 add 7
(E) 100 or more add 9."
Section 2L2.1(b) is amended by inserting the following additional subdivision:
"(3) [Option 1: If the defendant committed the instant offense subsequent to sustaining (A) one conviction for an immigration and naturalization offense, increase by 2 levels; or (B) two convictions for immigration and naturalization offenses each arising out of separate prosecutions, increase by 4 levels.]
[Option 2: If the defendant at the time of sentencing had been previously convicted of (A) one immigration and naturalization offense arising out of a separate and prior prosecution, increase by 2 levels; or (B) two immigration and naturalization offenses each arising out of separate prosecutions, increase by 4 levels.]"
The Commentary to §2L2.1 captioned "Application Notes" is amended by inserting the following additional notes:
"4. Prior felony conviction(s) resulting in an adjustment under subsection (b)(4) are also counted for purposes of determining criminal history points pursuant to Chapter Four, Part A (Criminal History).
5. An "immigration and naturalization offense" means any offense covered by Chapter 2, Part L.
6. For purposes of this section, the term "child" is defined at section 101(b)(1) of the Immigration and Nationality Act (8 U.S.C. § 1101(b)(1)) and "spouse" is defined at section 101(a)(35) of the Immigration and Nationality Act (8 U.S.C. § 1101(a)(35))."
Section 2L2.2(a) is amended by deleting "6" and inserting in lieu thereof "[8-10]".
Section 2L2.2(b) is amended by deleting "Characteristic" and inserting in lieu thereof "Characteristics"; and by inserting the following new subdivision:
"(2) [Option 1: If the defendant committed the instant offense subsequent to sustaining (A) one conviction for an immigration and naturalization offense, increase by 2 levels; or (B) two convictions for immigration and naturalization offenses each arising out of separate prosecutions, increase by 4 levels.]
[Option 2: If the defendant at the time of sentencing had been previously convicted of (A) one immigration and naturalization offense arising out of a separate and prior prosecution, increase by 2 levels; or (B) two immigration and naturalization offenses each arising out of separate prosecutions, increase by 4 levels.]"
The Commentary to §2L2.2 captioned "Application Note" is amended by deleting and inserting in lieu thereof "Notes"; and by inserting the following additional notes:
"2. Prior felony conviction(s) resulting in an adjustment under subsection (b)(4) are also counted for purposes of determining criminal history points pursuant to Chapter Four, Part A (Criminal History).
3. An `immigration and naturalization offense' means any offense covered by Chapter 2, Part L.".
4. Synopsis of Proposed Amendment: This amendment implements section 218 of the Illegal Immigration Reform and Immigrant Responsibility act of 1996. Section 218 directs the Commission to review the guideline for peonage, involuntary servitude and slave trade offenses and amend the guideline, as necessary, to:
"(A) reduce or eliminate any unwarranted disparity . . . between the sentences for peonage, involuntary servitude, and slave trade offenses, and the sentences for kidnapping offenses and alien smuggling;
(B) ensure that the applicable guidelines for defendants convicted of peonage, involuntary servitude, and slave trade offenses are sufficiently stringent to deter such offenses and adequately reflect the heinous nature of such offenses; and
(C) ensure that the guidelines reflect the general appropriateness of enhanced sentences for defendants whose peonage, involuntary servitude, or slave trade offenses involve, (i) a large number of victims; (ii) the use or threatened use of a dangerous weapon; or (iii) a prolonged period of peonage or involuntary servitude."
The amendment generally tracks the structure of the kidnapping guideline.
Section 2H4.1 is amended by deleting the section in its entirety and replacing in lieu thereof the following:
"§2H4.1. Peonage, Involuntary Servitude, and Slave Trade
(a) Base Offense Level (Apply the greater):
(1) [18-24]
(b) Specific Offense Characteristics
(1) (A) If any victim sustained permanent or life- threatening bodily injury, increase by [4-6] levels; (B) if any victim sustained serious bodily injury, increase by [2-4] levels.
(2) If a dangerous weapon was used, increase by [2-4] levels.
(3) If any victim was held in a condition of servitude or peonage for (A) more than one year, increase by [3- 5] levels; (B) between 180 days and one year, increase by [2-4] levels; (C) more than thirty days but less than 180 days, increase by [1-3] level.
(4) If any other offense was committed during the commission of or in connection with the servitude, peonage, or slave trade offense, increase to the greater of:
(A) 2 plus the offense level as determined above, or
(B) 2 plus the offense level from the offense guideline applicable to that other offense, but in no event greater than level 43.
Commentary
Statutory Provisions: 18 U.S.C. §§ 241, 1581-1588.
Application Notes:
Background: This section covers statutes that prohibit peonage, involuntary servitude, and slave trade. For purposes of deterrence and just punishment, the minimum base offense level is [18-24].".
Issue for Comment: Section 218 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 directs the Commission to ensure that the guidelines reflect the general appropriateness of enhanced sentences for defendants whose peonage, involuntary servitude, or slave trade offenses involve a large number of victims. The Commission seeks comment on whether the current enhancements provided under the guidelines' multiple count provisions are sufficient to ensure appropriately enhanced sentences when peonage, involuntary servitude, or slave trade offenses involve a large number of victims or whether a new specific offense characteristic for a large number of victims is needed.
5. Synopsis of Proposed Amendment: This amendment proposes to make permanent the emergency amendment promulgated by the Commission to implement section 730 of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub.L. 104132; 110 Stat. 1214). That section gave the Commission emergency authority, under section 21(a) of the Sentencing Act of 1987, to amend the sentencing guidelines so that the Chapter 3 adjustment in §3A1.4, relating to international terrorism, applies more broadly to Federal crimes of terrorism, as defined in section 2332b(g) of title 18, United States Code. By vote of the Commission, the emergency amendment became effective November 1, 1996. However, under the terms of section 21(a) of the Sentencing Act of 1987, the emergency amendment will no longer be in effect after submission of the next report to Congress under 28 U.S.C. § 994(p) unless in the next report, the Commission submits (and Congress does not disapprove) an amendment to make it permanent.
Proposed Amendment: Section 3A1.4 is amended in the title by deleting "International".
Section 3A1.4(a) is amended by deleting "international" and inserting in lieu thereof "a federal crime of".
The Commentary to §3A1.4 captioned "Application Notes" is amended in Note 1 in the first sentence by deleting "international" and inserting in lieu thereof "a federal crime of"; and in the second sentence by deleting "International" and inserting in lieu thereof "Federal crime of"; and by deleting "2331" and inserting in lieu thereof "2332b(g)".
6. Synopsis of Proposed Amendment: This is a two-part amendment to §1B1.1 (Application Instructions). First, the amendment corrects a technical error in §1B1.1(b). Second, the amendment expands the definition of "offense" to specify what is meant by the term "instant offense." This term is used to distinguish the current or "instant" offense from prior criminal offenses. Currently, this term is not defined and has repeatedly raised questions about its application. This amendment defines this term to mean the offense of conviction and relevant conduct, unless a different meaning is expressly stated or is otherwise clear from the context.
Two conforming amendments are necessary. The first conforming amendment adds commentary defining the term "instant offense" in relation to §3C1.1. Section 3C1.1 requires more extensive commentary regarding this term because of the variety of situations covered by this guideline. The second conforming amendment makes explicit that, with respect to §§4B1.1 and 4B1.2, the "instant offense" is the offense of conviction. Currently, §4B1.1 expressly states this in subdivision (2), but not in subdivision (1).
Proposed Amendment: Section 1B1.1(b) is amended by inserting ", cross references, and special instructions" immediately following "characteristics".
The Commentary to §1B1.1 captioned "Application Notes" is amended in Note 1(l) by inserting as the second sentence "The term `instant' is used in connection with `offense' when, in the context, it is necessary to distinguish the current or `instant' offense from prior criminal offenses.".
The Commentary to §3C1.1 captioned "Application Notes" is amended by inserting the following additional note at the end:
"8. `During the investigation or prosecution of the instant offense' means during, and in relation to, the investigation or prosecution of the federal offense of which the defendant is convicted and any offense or related civil violation, committed by the defendant or another person, that was part of the same investigation or prosecution, whether or not such offense resulted in conviction or such violation resulted in the imposition of civil penalties. It is not necessary that the obstructive conduct pertain to the particular count of which the defendant was convicted.
`During the sentencing of the instant offense' means during, and in relation to, the sentencing phase of the process, including the preparation of the presentence report.".
Section 4B1.1 is amended by deleting "of the instant offense" and inserting in lieu thereof "the defendant committed the instant offense of conviction".
Section 4B1.2(3) is amended by inserting "of conviction" immediately before "subsequent".
7. Synopsis of Proposed Amendment: This amendment amends §1B1.2 (Applicable Guidelines) and the Statutory Index to clarify that, except as otherwise provided in the Introduction to the Statutory Index, the Statutory Index will specify the Chapter Two offense guideline most applicable to an offense of conviction.
Proposed Amendment: The Commentary to §1B1.2 captioned "Application Notes" is amended in Note 1 by deleting "The Statutory Index (Appendix A) provides a listing to assist in this determination." and inserting in lieu thereof "Except as otherwise provided in the Introduction to the Statutory Index, the Statutory Index specifies the offense guideline section(s) in Chapter Two most applicable to the offense of conviction."; by inserting "in the Statutory Index" immediately following "referenced"; by inserting "more than one offense guideline section may be referenced in the Statutory Index for that particular statute and" immediately following "offense guidelines,"; by inserting "of the referenced" immediately following "determine which"; and by deleting "section" immediately before "applies" and inserting in lieu thereof "sections".
The Introduction to Appendix A is amended in the first paragraph by inserting "Therefore, as a general rule, when determining the guideline section from Chapter Two most applicable to the offense of conviction for purposes of §1B1.1, use the guideline referenced for that statute in this index." after the first sentence; deleting "If, in an atypical case, the guideline section indicated for the statute of conviction is inappropriate because of the particular conduct involved, use the guideline section most applicable to the nature of the offense conduct charged in the count of which the defendant was convicted. (See §1B1.2.)"; and by inserting "referenced" immediately before "for the substantive".
The Introduction to Appendix A (Statutory Index) is amended by moving the second paragraph to the end of the first paragraph.
The Introduction to Appendix A (Statutory Index) is amended by deleting the second (formerly the third) paragraph as follows:
" For those offenses not listed in this index, the most analogous guideline is to be applied. (See §2X5.1.)".,
and inserting in lieu thereof:
" However, there are exceptions to the general rule set forth above. If the statute of conviction (1) is not listed in this index; or (2) is listed in this index but the guideline section referenced for that statute is no longer appropriate to cover the offense conduct charged because of changes in law not yet reflected in this index, use the most analogous guideline. (See §2X5.1.)".
8. Synopsis of Proposed Amendment: This amendment incorporates into §1B1.3 (Relevant Conduct) the holding in United States v. Hill, 79 F.3d 1477 (6th Cir. 1996), that when two controlled substance transactions are conducted more than one year apart, the fact that the same controlled substance was involved in both transactions is insufficient, without more, to demonstrate that the transactions were part of the "same course of conduct" or "common scheme or plan".
Proposed Amendment: The Commentary to §1B1.3 captioned "Application Notes" is amended in Note 9(B) by deleting "For example, where" and inserting in lieu thereof "If"; and by inserting after the fourth sentence "For example, if two controlled substance transactions are conducted more than one year apart, the fact that the transactions involved the same controlled substance, without more information, is insufficient to show that they are part of the same course of conduct or common scheme or plan." after the fourth sentence.
9. Synopsis of Proposed Amendment: This amendment addresses the issue of whether acquitted conduct may be considered for sentencing purposes. Option 1 of this amendment excludes the use of acquitted conduct as a basis for determining the guideline range. Option 1 has two suboptions, either or both of which could be added. Option 1(A) adds the bracketed language, in the guideline and application note, providing that acquitted conduct shall be considered if established independently of evidence admitted at trial. Option 1(B) invites the use of acquitted conduct as a basis for upward departure.
Option 2 is derived from a "compromise" proposal suggested several years ago by the Commission's Practitioners' Advisory Group. It excludes acquitted conduct from consideration in determining the guideline range unless such conduct is established by the "clear and convincing" standard, rather than the less exacting "preponderance of the evidence" standard generally applicable to the determination of relevant conduct.
Option 3 expressly provides what currently is arguably implicit in the Relevant Conduct guideline: that acquitted conduct should be evaluated using the same standards as any other form of unconvicted conduct and included in determining the guideline range if those standards are met. However, the amended commentary invites a discretionary downward departure to exclude such conduct if the use of that conduct to enhance the sentence raises substantial concerns of fundamental fairness. It also states what should be the obvious appropriate floor for such a downward departure.
Proposed Amendment: [Option 1A: Section 1B1.3 is amended by inserting the following new subsection:
"(c) Acquitted conduct, i.e., conduct necessarily rejected by the trier of fact in finding the defendant not guilty of a charge, shall not be considered relevant conduct under this section unless it is independently established by evidence not admitted at trial.".
The Commentary to §1B1.3 captioned "Application Notes" is amended by renumbering Note 10 as Note 11 and by inserting the following as new Note 10:
"10. Subsection (c) provides that conduct (i.e., acts and omissions) of which the defendant has been acquitted after trial ordinarily shall not be considered in determining the guideline range. In applying this provision, the court should be mindful that evidence not admissible at trial properly may be considered at sentencing and that application of the guidelines often may involve determinations somewhat different from those necessary for conviction of an offense. For example, the factors necessary to establish the enhancement in §2D1.1(b)(1) for possession of a weapon in a controlled substance offense are different from the elements necessary to find a defendant guilty of using or carrying a firearm in connection with that offense, in violation of 18 U.S.C. § 924(c); therefore, an acquittal of that offense would not necessarily foreclose the application of the weapon enhancement. Moreover, even if the defendant is acquitted of a charge under 18 U.S.C. § 924(c), the weapon enhancement in §2D1.1(b)(1) may apply if, for example, another person possessed a weapon as part of jointly undertaken criminal activity with the defendant and the possession of the weapon was reasonably foreseeable.".]
[Option 1B: Section 1B1.3 is amended by inserting the following new subsection:
"(c) Acquitted conduct, i.e., conduct necessarily rejected by the trier of fact in finding the defendant not guilty of a charge, shall not be considered relevant conduct under this section.".
The Commentary to §1B1.3 captioned "Application Notes" is amended by renumbering Note 10 as Note 11 and by inserting the following as new Note 10:
"10. Subsection (c) provides that conduct (i.e., acts and omissions) of which the defendant has been acquitted after trial shall not be considered in determining the guideline range. In applying this provision, the court should be mindful that application of the guidelines often may involve determinations somewhat different from those necessary for conviction of an offense. For example, the factors necessary to establish the enhancement in §2D1.1(b)(1) for possession of a weapon in a controlled substance offense are different from the elements necessary to find a defendant guilty of using or carrying a firearm in connection with that offense, in violation of 18 U.S.C. § 924(c); therefore, an acquittal of that offense would not necessarily foreclose the application of the weapon enhancement. Moreover, even if the defendant is acquitted of a charge under 18 U.S.C. § 924(c), the weapon enhancement in §2D1.1(b)(1) may apply if, for example, another person possessed a weapon as part of jointly undertaken criminal activity with the defendant and the possession of the weapon was reasonably foreseeable. Although acquitted conduct may not be used in determining the guideline range, such conduct may provide a basis for an upward departure.".]
[Option 2
Section 1B1.3 is amended by inserting the following new subsection:
"(c) Acquitted conduct, i.e., conduct necessarily rejected by the trier of fact in finding the defendant not guilty of a charge, shall not be considered relevant conduct under this section unless such conduct is established by clear and convincing evidence.".
The Commentary to §1B1.3 captioned "Application Notes" is amended by renumbering Note 10 as Note 11 and by inserting the following as new Note 10:
"10 .Subsection (c) provides that conduct (i.e., acts and omissions) of which the defendant has been acquitted after trial shall not be considered in determining the guideline range unless, considering the evidence admitted at trial and any additional evidence presented at sentencing, such conduct is established by clear and convincing proof.
In determining whether conduct necessarily was rejected by an acquittal, the court should be mindful that application of the guidelines often may involve determinations different from those necessary for conviction of an offense. For example, the factors necessary to establish the enhancement in §2D1.1(b)(1) for possession of a weapon in a controlled substance offense are different from the elements necessary to find a defendant guilty of using or carrying a firearm in connection with that offense, in violation of 18 U.S.C. § 924(c); therefore, an acquittal of that offense would not necessarily foreclose the application of the weapon enhancement. Moreover, even if the defendant is acquitted of a charge under 18 U.S.C. § 924(c), the weapon enhancement in §2D1.1(b)(1) may apply if, for example, another person possessed a weapon as part of jointly undertaken criminal activity with the defendant and the possession of the weapon was reasonably foreseeable.".]
[Option 3
The Commentary to §1B1.3 captioned "Application Notes" is amended by renumbering Note 10 as Note 11 and by inserting the following note as new Note 10:
"10 .Acquitted conduct, i.e., conduct necessarily rejected by the trier of fact in finding the defendant not guilty of a charge, shall be considered under this section if it otherwise qualifies as relevant conduct within the meaning of this section. However, if the court determines that, considering the totality of circumstances, the use of such conduct as a sentencing enhancement raises substantial concerns of fundamental fairness, a downward departure may be considered. Such a downward departure should not result, in the absence of other appropriate factors, in a sentence lower than the minimum sentence in the guideline range that would apply if such conduct were not considered.".]
§1B1.5Interpretation of References to Other Offense Guidelines
10. Synopsis of Proposed Amendment: This amendment simplifies the operation of Chapter Two cross references in two ways: (1) by amending §1B1.5 (Interpretation of References to Other Offense Guidelines) to provide that only Chapter Two offense levels (not Chapter Two offense levels and Chapter Three adjustments) must be considered in determining whether a cross reference will result in a greater offense level than that provided in the Chapter Two guideline that contains the cross reference provision; and, (2) by amending §2X1.1 to replace the three-level reduction for certain offenses involving attempts, solicitation and, conspiracy with a downward departure provision (see accompanying memorandum). This amendment also corrects a technical error in Application Note 1 of §1B1.5.
1) Amendment of §1B1.5Approximately 32 guideline subsections involving numerous cross references contain a requirement that the cross reference applies only if it results in the greater offense level. Currently, to determine the "greater offense level," a comparison is required taking into account both the Chapter Two offense levels and any applicable Chapter Three adjustments. The inclusion of the Chapter Three adjustments in the comparison significantly increases the complexity of this task.
This amendment simplifies the guidelines by restricting the comparison to the Chapter Two offense levels, unless a different procedure is expressly specified. The amendment, together with existing guideline language, provides a different procedure with respect to §§2C1.1, 2C1.7, 2E1.1, 2E1.2 because they are the only four offense guidelines in which the inclusion of Chapter Three adjustments in the comparison is likely to make a difference. Although it is possible that there may be a difference under some other guideline section under some unusual circumstance, such differences will occur extremely rarely, if at all.
Sections 2E1.1 and 2E1.2 currently expressly provide for a comparison (of the offense level applicable to the underlying activity and the alternative base offense level) including Chapter Three adjustments. There may be cases, for example, in which abuse of a position of trust is accounted for in the offense level applicable to the underlying racketeering activity. If Chapter Three adjustments (including §3B1.3 (Abuse of Position of Trust or Use of Special Skill)) are not included in the comparison, then abuse of a position of trust would be taken into account only in the offense level applicable to the underlying activity and not with respect to the alternative base offense level.
Likewise, §§2C1.1 and 2C1.7 currently do not expressly provide for a comparison including Chapter Three adjustments, although under current §1B1.5 such a comparison is called for. Cases under §§2C1.1 and 2C1.7 would have a different result using a Chapter Two comparison versus a Chapter Two and Three comparison only where the Chapter Two offense level from §2C1.1 or 2C1.7 was the same as that for the underlying offense, and a 2-level adjustment from §3B1.3 would apply to the underlying offense (an adjustment from §3B1.3 does not apply to an offense level from §2C1.1 or §2C1.7). In such case, a 2-level difference would result: that conduct would already be taken into account under §§2C1.1 and 2C1.7 but would not be taken into account in the comparison of the offense level from the underlying offense because the Chapter Three adjustment would not be included. However, such cases should occur relatively infrequently. In FY 1995, there were 220 cases sentenced under §2C1.1 altogether and 26 cases sentenced under 2C1.7.
To address the cases described above, this amendment requires, as an express exception to the general rule provided for in the amendment, that the comparisons made in §§2C1.1, 2C1.7, 2E1.1, and 2E1.2 include Chapter Three adjustments. Application notes are added to §§2C1.1 and 2C1.7 expressly requiring a Chapter Three comparison (and the application notes in §§2E1.1 and 2E1.2 that require the same are retained), without any substantive change.
2) Amendment of §2X1.1This amendment also proposes deletion of the three-level reduction under §2X1.1(b)(1), (2), or (3), for attempts, conspiracies, or solicitations not covered by a specific offense guideline, in which the defendant has not completed all the acts necessary for the substantive offense and was not "about to complete all such acts but for the apprehension or interruption by some similar event beyond the defendant's control." In place of the three-level reduction, this amendment provides for the possibility of a downward departure under such circumstances. The arguments for eliminating the provisions are: (1) a large number of cases that go to §2X1.1 theoretically are required to be considered for the reduction, but only a small number qualify for it; (2) on its face the provision should be expected to apply rarely; and (3) the concerns manifested in the provisions can be dealt with adequately through departure. On the other hand, if the three-level reduction is replaced by a departure provision, in the rare case when the requirements for a reduction under subsection (b) are met, the defendant will not have a right to the reduction but must rely on the sentencing judge's exercise of the discretion to depart.
In FY 1995 there were 1,568 cases in which the highest guideline applied was §2X1.1(a). Of these, 33 (or 2%) received the three-level reduction under subsection (b) (17 for attempt, 13 for conspiracy, and 3 for solicitation). The affirmance rate of appeals of these findings has been very high (90.5% in FY 1995, 85% in FY 1994, and 94.4% in FY 1993).
Proposed Amendment: Section §1B1.5(d) is amended by deleting "final offense level (i.e., the greater offense level taking into account the Chapter Two offense level and any applicable Chapter Three adjustments)" and inserting in lieu thereof "Chapter Two offense level, except as otherwise expressly provided".
The Commentary to §1B1.5 captioned "Application Notes" is amended in Note 1 by deleting ", (2)," and inserting in lieu thereof "and" immediately after "§2D1.2(a)(1)" and by deleting "and §2H1.1(a)(1),".
The Commentary to §1B1.5 captioned "Application Notes" is amended in Note 2 by deleting in the second sentence "greater final"; by deleting "(i.e., the greater offense level"; by deleting "both" and inserting in lieu thereof "only"; and by deleting "and any applicable Chapter Three adjustments)."
The Commentary to §1B1.5 captioned "Application Notes" is amended in Note 2 by deleting the second and third sentences and inserting the following in lieu thereof:
", unless the offense guideline expressly provides for consideration of both the Chapter Two offense level and applicable Chapter Three adjustments. For situations in which a comparison involving both Chapters Two and Three is necessary, see the Commentary to §§2C1.1 (Offering, Giving, Soliciting, or Receiving a Bribe); 2C1.7 (Fraud Involving Deprivation of the Intangible Right to the Honest Services of Public Officials); 2E1.1 (Unlawful Conduct Relating to Racketeer Influenced and Corrupt Organizations); and 2E1.2 (Interstate or Foreign Travel or Transportation in Aid of Racketeering Enterprise).".
The Commentary to §2C1.1 captioned "Application Notes" is amended by inserting the following additional note:
7. For the purposes of determining whether to apply the cross references in this section, the "resulting offense level" means the greater final offense level (i.e., the offense level determined by taking into account both the Chapter Two offense level and any applicable adjustments from Chapter Three, Parts A-D).".
The Commentary to §2C1.7 captioned "Application Notes" is amended by inserting the following additional note:
"6. For the purposes of determining whether to apply the cross references in this section, the "resulting offense level" means the greater final offense level (i.e., the offense level determined by taking into account both the Chapter Two offense level and any applicable adjustments from Chapter Three, Parts A-D).".
Section §2X1.1 is amended by deleting subsection (b) in its entirety and redesignating subsection (c) as subsection (b).
The Commentary to §2X1.1 captioned "Application Notes" is amended by deleting Note 4 in its entirety and inserting the following in lieu thereof:
"4. This guideline applies to attempts, solicitations, or conspiracies that are not covered by a specific offense guideline. In cases to which this guideline applies, a downward departure of up to three levels may be warranted if the defendant is arrested well before the defendant or any co-conspirator has completed the acts necessary for the substantive offense. A downward departure would not be appropriate under this section in cases in which the defendant or a co-conspirator completed all the acts such person believed necessary for successful completion of the substantive offense or the circumstances demonstrate that the person was about to complete all such acts but for apprehension or interruption by some similar event beyond the person's control. A downward departure also would not be appropriate in cases involving solicitation if the statute treats solicitation of the substantive offense identically with the substantive offense, i.e., the offense level in such cases should be the same as that for the substantive offense.".
The Commentary to §2X1.1 captioned "Background" is deleted in its entirety.
The Commentary to §1B1.3 captioned "Application Notes" is amended by deleting Note 7 in its entirety.
The Commentary to §2A4.1 captioned "Application Notes" is amended in Note 5 by deleting ", subject to a possible 3-level reduction under §2X1.1(b))".
The Commentary to §2F1.1 captioned "Application Notes" is amended by deleting Note 9 in its entirety.
11. Synopsis of Proposed Amendment: This amendment responds to recent litigation, including a circuit conflict and inquiries regarding the operation of §1B1.10 and related statutory provisions.
The amendment clarifies Commission intent that the designation of an amendment for retroactive application to previously sentenced, imprisoned defendants authorizes only a reduction in the term of imprisonment pursuant to 18 U.S.C. § 3582(c)(2) (which, in turn, speaks only to modification of a term of imprisonment) and does not open any other components of the sentence (e.g., the term of supervised release) to modification. The amendment further clarifies that the amount of reduction in the prison sentence, subject to the constraints of the amended, reduced guideline range and the amount of time remaining to be served, is within the sound discretion of the court.
Proposed Amendment: Section 1B1.10 is amended in the title by deleting "Retroactivity" and inserting in lieu thereof "Reduction in Term of Imprisonment as a Result".
Section 1B1.10(b) is amended by deleting "sentence" the first time it appears and inserting in lieu thereof "the term of imprisonment", by deleting "sentence" the next time it appears and inserting in lieu thereof "term of imprisonment", and by inserting ", except that in no event may the reduced term of imprisonment be less than the term of imprisonment the defendant has already served" immediately before the period at the end of the sentence.
The Commentary to §1B1.10 captioned "Application Notes" is amended by inserting the following additional note at the end:
"3. The determination of whether to grant a reduction in a term of imprisonment under 18 U.S.C. § 3582(c)(2) and the amount of such reduction are within the sound discretion of the court, subject to the limitations in subsection (b).".
The Commentary to §1B1.10 captioned "Background" is amended in the third paragraph by inserting "to determine an amended guideline range under subsection (b)" immediately before the period at the end of the sentence; and by inserting the adding at the end the following new paragraph:
"The listing of an amendment in subsection (c) reflects policy determinations by the Commission that a reduced guideline range is sufficient to achieve the purposes of sentencing and that, in the sound discretion of the court, a reduction in the term of imprisonment may be appropriate for previously sentenced, qualified defendants. The authorization of such a discretionary reduction does not otherwise affect the lawfulness of a previously imposed sentence, does not authorize a reduction in any other component of the sentence, and does not entitle a defendant to a reduced term of imprisonment as a matter of right.".
§2B1.1.Larceny, Embezzlement, and Other Forms of Theft; Receiving, Transporting, Transmitting, or Possessing Stolen Property
12. Synopsis of Proposed Amendment: a) Source and Purpose--This amendment addresses a significant interpretive problem involving a specific offense characteristic in the Theft (§2B1.1) and Fraud (§2F1.1) guidelines. The problem occurs in connection with the specific offense characteristic under §2B1.1(b)(6)(B) and §2F1.1(b)(6)(B), which provides an enhancement of four levels (approximate 50 percent increase) and a floor offense level of 24 (51-63 months for a first offender), if the offense "affected a financial institution and the defendant derived more than $1,000,000 in gross receipts from the offense." The proper interpretation of this language has been the subject of a number of hotline calls and some litigation (although no circuit conflict has yet resulted). Staff review of the Theft and Fraud guidelines has raised this matter for possible Commission attention.
b) Number of affected cases--FY `95 monitoring data are unable to distinguish cases that received the similar enhancement for substantially jeopardizing the safety and soundness of a financial institution (under §2B1.1(b)(6)(A) and §2F1.1(b)(6)(A)) from this particular enhancement under paragraph (B). One or the other enhancement was applied in 37 (0.6%) of 6,019 fraud cases and 28 (0.9%) of 3,142 theft (§2B1.1) cases. This amendment could decrease the frequency with which this particular enhancement is given. The amendment proposes to delete the four-level enhancement in paragraph (B), while retaining the minimum offense level of 24 (because that is all the directive requires). This could affect as many as 27 of the fraud cases (i.e., 27 of the fraud cases received a 4-level enhancement while 10 were affected by the floor of 24) and 2 of the theft cases (i.e., 2 of the 28 cases received a 4-level enhancement while 26 were affected by the floor of 24).
c) Scope of Amendment -- This amendment would continue to apply the enhancement to a broader spectrum of cases than minimally required under the congressional directive. However, the commentary would state that the offense must be perpetrated against one or more financial institutions and the defendant's $1 million must be derived entirely from one or more financial institutions. The definition for "gross receipts" in the commentary would be amended to clarify that "gross receipts from the offense" includes property under the control of, or in the custody of, the financial institution for a second party, e.g., a depositor. The Background Commentary would also be amended to reflect the Commission's intent to implement the congressional directive more broadly.
Proposed Amendment: Section §2B1.1(b)(6) is amended by deleting "(A)"; by deleting "; or" immediately following "institution" and inserting in lieu thereof a "," ; and by deleting subsection (B) in its entirety.
Section §2B1.1 is amended by inserting the following additional subsection:
"(7) If (A) obtaining or retaining the gross receipts of one or more financial institutions was an object of the offense, (B) the defendant derived more than $1,000,000 in gross receipts from such institutions, and (C) the offense level as determined above is less than level 24, increase to level 24.".
The Commentary to §2B1.1 captioned "Application Notes" is amended in Note 11 by inserting at the beginning the following:
"For purposes of subsection (b)(7), `gross receipts' means any moneys, funds, credits, assets, securities, or other real or personal property, whether tangible or intangible, owned by, or under the custody or control of, a financial institution, that are obtained directly or indirectly as a result of such offense. See 18 U.S.C. §§ 982(a)(4), 1344.".
The Commentary to §2B1.1 captioned "Application Notes" is amended in Note 11 by deleting in the second sentence (formerly the first sentence) "from the offense,"; by deleting "(6)(B)" immediately following "(b)"; and by deleting "generally" immediately following "(7),".
The Commentary to §2B1.1 captioned "Application Notes" is amended in Note 11 by deleting the third sentence (formerly the second sentence) in its entirety.
The Commentary to §2B1.1 captioned "Background" is amended in the sixth paragraph by deleting "Subsection" and inserting in lieu thereof "Subsections"; by deleting "(A)" immediately following "(b)(6)" and inserting in lieu thereof "and (b)(7)"; by deleting "implements" and inserting in lieu thereof "implement"; by deleting "instruction" and inserting in lieu thereof "instructions"; and by inserting "and section 2507 of Public Law 101-647, respectively" immediately following "101-73".
Section 2F1.1(b)(6) is amended by deleting "(A)"; by deleting "; or" immediately following "institution" and inserting in lieu thereof a "," ; and by deleting (B) in its entirety.
Section §2F1.1(b) is amended by inserting the following additional subsection:
"(7) If (A) obtaining or retaining the gross receipts of one or more financial institutions was an object of the offense, (B) the defendant derived more than $1,000,000 in gross receipts from such institutions, and (C) the offense level as determined above is less than level 24, increase to level 24.".
The Commentary to §2F1.1 captioned "Application Notes" is amended in Note 16 by deleting in the first sentence "from the offense,"; by deleting "(6)(B)" immediately following "(b)"; and by deleting "generally" immediately following "(7),".
The Commentary to §2F1.1 captioned "Application Notes" is amended in Note 16 by deleting the second sentence in its entirety.
The Commentary to §2F1.1 captioned "Application Notes" is amended in Note 16 by inserting at the beginning the following:
"For purposes of subsection (b)(7), `gross receipts' means any moneys, funds, credits, assets, securities, or other real or personal property, whether tangible or intangible, owned by, or under the custody or control of, a financial institution, that are obtained directly or indirectly as a result of such offense. See 18 U.S.C. §§ 982(a)(4), 1344.".
The Commentary to §2F1.1 captioned "Background" is amended in the seventh paragraph by deleting "Subsection" and inserting in lieu thereof "Subsections";
by deleting "(A)" immediately following "(b)(6)" and inserting in lieu thereof "and (b)(7)";
by deleting "implements" and inserting in lieu thereof "implement";
by deleting "instruction" and inserting in lieu thereof "instructions";
and by inserting "and section 2507 of Public Law 101-647, respectively" immediately following "101-73".
13. Synopsis of Proposed Amendment: This is a two-part amendment. First, this amendment incorporates the Sentencing Table into a new guideline at §5A1.1, in response to questions about the legal status of the Sentencing Table. By incorporating the Sentencing Table into a guideline, this amendment also uses a construct for the Sentencing Table that is consistent with the construct used for other tables in the Guidelines Manual, such as the Drug Quantity Table in §2D1.1.
Second, this amendment addresses an arguably unwarranted "cliff" in the Sentencing Table between offense levels 42 and 43. Under the current table, offense level 42 prescribes guideline ranges of 360 months to life imprisonment for each criminal history category. Offense level 43, in comparison, prescribes a guideline sentence of life for each criminal history category.
There is evidence that the Commission initially intended to preserve level 43 and its resulting life sentence requirement for the most egregious law violators; i.e., those convicted of first degree murder, including felony murder, and treason. Note, for example, the wording of Application Note 1 to §2A1.1: "The Commission has concluded that in the absence of capital punishment life imprisonment is the appropriate punishment for premeditated killing." However, in providing for a sentencing table with a continuous series of offense levels, the Commission actually made it possible for those most serious categories of criminals to be subject to offense levels less than 43 (and, hence, to guideline ranges that do not require a life sentence), if mitigating guideline adjustments apply. Conversely, the continuous nature of the Sentencing Table also can result in defendants who commit less inherently serious crimes; i.e., those carrying base offense levels less than 43, receiving an offense level of 43 (and, hence, a required life sentence) as a result of applicable aggravating guideline adjustments (e.g., aggravating role, weapon enhancement). Prior to a 1994 amendment reducing the quantity-based offense level in the drug table from 42 to 38, this latter situation occurred more frequently than it occurs now.
Nevertheless, in those infrequent cases, when a defendant whose base offense level is less than 43 becomes subject to guideline enhancements that result in a final, adjusted offense level of 43 or more, a "mandatory" guideline sentence of life imprisonment may not be warranted. In the last several years, a number of judges have written or called the Commission to express concern about what they see as an anomalous, unwarranted "cliff" between level 42 (range of 360 months to life) and level 43 (life), particularly in the case of a very young defendant who has a remaining life expectancy exceeding 30 years. Those who have contacted the Commission about this sentencing table phenomenon have pointed out that, for younger defendants, there may be a definite qualitative as well as a quantitative difference between a sentence of 30 or more years and a non-parolable sentence of life. In some of these cases, the applicability of a guideline enhancement of one or two offense levels can turn a very lengthy, deserved sentence into a life sentence that may not be warranted and, according to some who have commented, may even raise Eighth Amendment concerns.
The second part of this amendment addresses this concern by making level 42 the offense level upper limit in the sentencing table, unless the defendant was subject to an offense level of 43 as a result of the application of §2A1.1 (First Degree Murder), §2M1.1 (Treason), or other guideline provision that elevates the offense level to level 43 because of the death of a person. In such cases, level 43 and its associated life sentence would continue to apply. This approach preserves level 43 for the most egregious cases while providing a range of 360 months to life for all other cases that reach level 42 through guideline enhancements.
This amendment can be expected to affect a relatively small number (perhaps 30-40) of cases, based on FY 1995 monitoring data. In FY 1995, 80 defendants received a final offense level of 43. Of these, 28 would not be affected because level 43 was received via §2A1.1 (First Degree Murder); (there were no §2M1.1 (Treason) cases.) Of the 52 remaining defendants at final offense level 43, 34 received a life sentence. The amendment could be expected to impact approximately this number of defendants, some of whom might still receive a life sentence because the judge elected to impose it.
Proposed Amendment: The Commentary to §2A1.1 captioned "Application Notes" is amended in Note 1 by deleting "life imprisonment is the appropriate punishment for premeditated killing" and inserting in lieu thereof "a defendant who commits premeditated murder should be sentenced at the highest offense level under the Sentencing Table (subject to any applicable adjustments from Chapter Three)" ; and by deleting the second, third, and fourth sentences.
Chapter Five - Determining the Sentence is amended in Part A - Sentencing Table by deleting "The Sentencing Table used to determine the guideline range follows:" and inserting in lieu thereof:
"§5A1.1Sentencing Table
(a) The Sentencing Table used to determined the guideline range is set forth in subsection (b).".
Chapter Five - Determining the Sentence is amended in Part A - Sentencing Table by inserting "(b)" in the title of the Sentencing Table.
The Commentary to Sentencing Table is amended in Note 2 by deleting "An offense level of more than 43 is to be treated as an offense level of 43." and inserting the following in lieu thereof:
"A total offense level of more than 42 is to be treated as an offense level of 42. However, if the final offense level is 43 or more as a result of the application of §2A1.1 (First Degree Murder), §2M1.1 (Treason), or another guideline provision (including a cross reference to §2A1.1) that increases the offense level to level 43 because the offense involved first degree murder or resulted in death, the offense level is to be treated as an offense level of 43.".
14. Synopsis of Proposed Amendment: (a) Source and Purpose--This amendment addresses a split among the circuit courts regarding the application of the "express threat of death" enhancement in §2B3.1 (Robbery).
The majority, relying on the Commission's discussion in Application Note 6, holds that the enhancement applies when the combination of the defendant's actions and words would instill in a reasonable person in the position of the immediate victim (e.g.,a bank teller) a greater amount of fear than necessary to commit the bank robbery. Pursuant to this approach, the enhancement applies even when the defendant's statement does not indicate distinctly an intent to kill the victim; it is sufficient that the victim infers from the defendant's conduct that a threat of death was made. See United States v. Robinson, 86 F.3d 1197, 1202 (D.C. Cir. 1996)(enhancement applies if (1) a reasonable person in the position of the immediate victim would very likely believe the defendant made a threat and the threat was to kill; and (2) the victim likely thought his life was in peril); United States v. Murray, 65 F.3d 1161, 1167 (4th Cir. 1995)("any combination of statements, gestures, or actions that would put an ordinary victim in reasonable fear for his or her life is an express threat of death"); United States v. France, 57 F.3d 865, 868 (9th Cir. 1995)("[a]n express threat need not be specific in order to instill the requisite level of fear in a reasonable person"); United States v. Hunn, 24 F.3d 994 (7th Cir. 1994)(combination of defendant's note and his gesture that he was pointing a gun through his pocket at the teller would be understood by a reasonable victim as a death threat); United States v. Bell, 12 F.3d 139 (8th Cir. 1993)(upholding enhancement based on demand note's statement "Make any sudden moves alert anyone I'll pull the pistol in this purse and the shooting will start!"); United States v. Smith, 973 F.2d 1374, 1378 (8th Cir. 1992)(combination of threatening statements to teller and gesture that defendant had a gun instilled greater fear than necessary to commit the robbery).
The minority holds that only what the defendant does or says, not what the victim infers, should be used to assess whether an express threat of death was made within the meaning of the robbery guideline. United States v. Alexander, 88 F.3d 427, 431 (6th Cir. 1996)("a defendant's statement must distinctly and directly indicate that the defendant intends to kill or otherwise cause the death of the victim"); United States v. Tuck, 964 F.2d 1079 (11th Cir. 1992)(same); see also United States v. Hunn, 24 F.3d at 999-1000 (Easterbrook, J., dissenting). The Sixth Circuit also held that the commentary examples and the Commission's underlying intent at Application Note 6 are not controlling because they are inconsistent with the plain meaning of "express"in §2B3.1(b)(2)(F). United States v. Alexander, 88 F.3d at 431(referring to Stinson v. United States, 508 U.S. 36 (1993)).
(b) Policy Considerations--The major policy consideration is how strictly the Commission intends for the threat of death enhancement to apply; i.e., must the defendant explicitly threaten death in order for the enhancement to apply.
(c) Number of Affected Cases--In FY 1995, the enhancement in applied in 169 out of 1,488 cases (or 11.4% of the cases) sentenced under the robbery guideline.
(d) Amendment Options--This amendment adopts the majority view and clarifies the Commission's intent to enhance offense levels for defendants whose intimidation of the victim exceeds that amount necessary to constitute an element of a robbery offense. The amendment deletes the reference to "express" in §2B3.1(b)(2)(F) and provides for a two- level enhancement "if a threat of death was made".
Proposed Amendment: Section §2B3.1(b)(2)(F) is amended by deleting "an express" and inserting in lieu thereof "a".
Option 1:
The Commentary to §2B3.1 captioned "Application Notes" is amended in Note 6 by deleting "An express" and inserting in lieu thereof "A ? ";
by deleting the second sentence in its entirety and inserting in lieu thereof "Accordingly, the defendant does not have to state expressly his intent to kill the victim in order for the enhancement to apply.";
and by deleting in the third sentence "the underlying" and inserting in lieu thereof "this".
Option 2:
The Commentary to §2B3.1 captioned "Application Notes" is amended in Note 6 by deleting "An express" and inserting in lieu thereof "A " ";
by deleting the second sentence in its entirety and inserting in lieu thereof "Accordingly, the defendant does not have to state expressly his intent to kill the victim in order for the enhancement to apply.";
by deleting in the third sentence "the underlying" and inserting in lieu thereof "this";
and by deleting "significantly greater fear than that necessary to constitute an element of the offense of robbery" and inserting in lieu thereof "a fear of death".
15. Synopsis of Proposed Amendment: This amendment addresses the Carjacking Correction Act of 1996, Pub.L. 104-217; 110 Stat. 3020. Section 2 of that Act amends 18 U.S.C. § 2119(2), which (A) makes it unlawful to take a motor vehicle by force and violence or by intimidation, with intent to cause death or serious bodily harm, and (B) provides for a term of imprisonment of not more than 25 years if serious bodily injury results. As amended by the Carjacking Correction Act of 1996, 18 U.S.C. § 2119(2) includes aggravated sexual abuse under 18 U.S.C. § 2241 and sexual abuse under 18 U.S.C. § 2242 within the meaning of "serious bodily injury". Therefore, a defendant will be subject to the 25-year statutory maximum under 18 U.S.C. § 2119(2) if the defendant commits a carjacking and rapes the carjacking victim during the carjacking.
In addition, this amendment amends §2B3.1(b)(1) to provide cumulative enhancements if the offense involved bank robbery and carjacking. Currently, §2B3.1 provides a 2-level enhancement either for bank robbery or for carjacking; it does not provide separate enhancements for those factors.
Two options are presented. Option 1 is a fairly narrow response to the Act. It amends Application Note 1 of §2B3.1 (Robbery, Extortion, and Blackmail), the guideline which covers carjacking offenses under 18 U.S.C. § 2119 (and only that guideline) to provide that "serious bodily injury" includes aggravated sexual abuse under 18 U.S.C. § 2241 and sexual abuse under 18 U.S.C. § 2242.
Option 2 is a broader response to the Act. It expands the definition of "serious bodily injury" under §1B1.1. Option 2 makes this broader definition generally applicable to Chapter Two offense guidelines which contain a "serious bodily injury" enhancement. The sexual abuse guideline, §2A3.1, in turn is amended to make clear that, for purposes of that guideline, the "serious bodily injury" enhancement covers conduct other than aggravated sexual abuse and sexual abuse, which are inherent in the conduct covered by that guideline.
Option 2 also clarifies the guideline definition of serious bodily injury by inserting the word "protracted" immediately preceding the word "impairment". Statutes defining serious bodily injury consistently use the term "protracted" before "impairment" (e.g., 18 U.S.C. §§ 831, 1365, 1864; 21 U.S.C. § 802). Without use of the term "protracted", even a temporary impairment such as a "sprained wrist" would fall within the definition of serious bodily injury, as would the throwing of sand or pepper in someone's face to temporarily impair vision. Finally, Option 2 removes two sentences of commentary that are unhelpful.
[Option 1
Section 2B3.1(b)(1) is amended by deleting "(A)" immediately following "If", and by deleting "or (B) the offense involved carjacking,".
Section 2B3.1 is amended by renumbering subdivisions (5) and (6) as subdivisions (6) and (7) respectively and inserting the following as a new subdivision (5):
"(5) If the offense involved carjacking, increase by 2 levels.".
Section 2B3.1 captioned "Application Notes" is amended in Note 1 by inserting "For purposes of this guideline" immediately before "`Firearm,'" and inserting "In addition, "`serious bodily injury'" includes conduct constituting criminal sexual abuse under 18 U.S.C. § 2241 or § 2242 or any similar offense under state law." immediately after "Instructions).".
[Option 2
The Commentary to §1B1.1 captioned "Application Notes" is amended in Note 1(b) by deleting "As used in the guidelines, the definition of this term is somewhat different than that used in various statutes.".
The Commentary to §1B1.1 captioned "Application Notes" is amended in Note 1(j) by inserting "protracted" immediately before "impairment"; and by deleting "As used in the guidelines, the definition of this term is somewhat different than that used in various statutes." and inserting in lieu thereof "`Serious bodily injury' includes conduct constituting criminal sexual abuse under 18 U.S.C. § 2241 or § 2242 or any similar offense under state law.".
The Commentary to §2A3.1 captioned "Application Notes" is amended in Note 1 by inserting "For purposes of this guideline" immediately before "`Permanent"; and by inserting the following as the last sentence:
"However, for purposes of this guideline,"serious bodily injury" means conduct other than criminal sexual abuse, which already is taken into account in the base offense level under subsection (a).".
The Commentary to §2A3.1 captioned "Application Notes" is amended in Note 1 by inserting the following as the last paragraph:
"`The means set forth in 18 U.S.C. § 2241(a) or (b)' are: by using force against the victim; by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury, or kidnapping; by rendering the victim unconscious; or by administering by force or threat of force, or without the knowledge or permission of the victim, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of the victim to appraise or control conduct. This provision would apply, for example, where any dangerous weapon was used, brandished, or displayed to intimidate the victim.".
The Commentary to §2A3.1 captioned "Application Notes" is amended by deleting Note 2 in its entirety; and by renumbering Notes 3-7 as Notes 2-6 respectively.
Section 2B3.1(b)(1) is amended by deleting "(A)" immediately after "If"; by deleting "or (B) the offense involved carjacking," immediately before "increase".
Section 2B3.1(b) is amended by renumbering subdivisions (5) and (6) as subdivisions (6) and (7) respectively, and by inserting the following as a new subdivision (5):
"(5) If the offense involved carjacking, increase by 2 levels.".
§2B5.1Offenses Involving Counterfeit Bearer Obligations of the United States
16. Synopsis of Proposed Amendment: This is a three-part amendment. First, this amendment addresses section 807(h) of the Antiterrorism and Effective Death Penalty Act of 1996. That section requires the Commission to amend the sentencing guidelines to provide an appropriate enhancement for a defendant convicted of an international counterfeiting offense under 18 U.S.C.§ 470. The amendment adds a specific offense characteristic in §2B5.1 (Offenses Involving Counterfeit Bearer Obligations of the United States) to provide a two-level enhancement if the offense occurred outside the United States.
Second, this amendment moves the coverage of offenses involving altered bearer instruments of the United States from §2F1.1 (Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States) to §2B5.1 (Offenses Involving Counterfeit Bearer Obligations of the United States). Currently, §2B5.1 covers counterfeit bearer obligations of the United States. Section 2F1.1 covers altered bearer obligations of the United States. The offense level in §2B5.1 is one-level higher than sophisticated fraud (i.e., fraud and more than minimal planning) under §2F1.1 throughout the range of loss values. There are two reasons for moving offenses involving altered bearer instruments of the United States from §2F1.1 to §2B5.1: (A) theoretical consistency, and (B) simplicity of guideline operation.
(A) Theoretical Consistency. The higher offense level for offenses involving counterfeit bearer obligations of the United States reflects the lower level of scrutiny realistically possible in transactions involving currency and the absence of any requirement that the person passing the currency produce identification. Under this rationale, however, altered bearer obligations of the United States seem to belong with counterfeit bearer obligation of the United States, rather than with other counterfeit or altered instruments.
(B) Simplicity of Guideline Operation. As a practical matter, the distinction between an altered instrument and a counterfeit instrument is not always clear. For example, if a genuine one-dollar bill is bleached and a photocopy of a twenty-dollar bill made using the genuine note paper, is the resulting twenty-dollar bill a counterfeit bill or an altered bill? In one recent case, a defendant made photocopies of twenty-dollar bills, then cut out the presidential picture of genuine twenty-dollar bills and switched pictures (using the genuine picture with the photocopied bill and the photocopied picture with the otherwise genuine bill). Is the photocopied bill with the genuine presidential picture a counterfeit or an altered instrument? This amendment simplifies the guidelines by handling this conduct in the same offense guideline, thus avoiding any difference based upon such very fine distinctions.
Third, this amendment clarifies the operation of §2B5.1 (Offenses Involving Counterfeit Bearer Obligations of the United States) in two respects to address issues raised in litigation. It deletes a phrase in Application Note 3 concerning photocopying a note that could lead to the inappropriate conclusion that an enhancement from subsection (b)(2) does not apply even to sophisticated copying of notes. It also adds an application note to provide expressly that items clearly not intended for circulation are not counted under subsection (b)(1).
Proposed Amendment: Section 2B5.1 is amended in the title by inserting "or Altered" immediately following "Counterfeit".
Section 2B5.1(b)(1) and (b)(2) are both amended by inserting "or altered" immediately following "counterfeit".
Section 2B5.1(b) is amended by inserting the following new subdivision at the end:
"(4) If the offense was committed outside the United States, increase by 2 levels.".
The Commentary to §2B5.1 captioned "Statutory Provision" is amended by deleting "471" and inserting in lieu thereof "470".
The Commentary to §2B5.1 captioned "Application Notes" is amended by deleting Note 2, renumbering Note 1 as Note 2 and inserting the following as the new Note 1:
"1. For purposes of this guideline, "United States" means each of the fifty states, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, the Northern Mariana Islands, and American Samoa.";
in Note 2 (formerly Note 1) by inserting "or altering" immediately following "counterfeiting";
by renumbering Note 3 as Note 4 and inserting the following as the new Note 3:
"3. For the purposes of subsection (b)(1), do not count items that clearly were not intended for circulation (e.g., items that are so defective that they are unlikely to be accepted even if subjected to only minimal scrutiny). However, partially completed items that would have been completed but for the discovery of the offense should be counted for purposes of such subsection.";
and in Note 4 (formerly Note 3) by deleting "merely photocopy notes or otherwise".
The Commentary to §2B5.1 captioned "Background" is amended by inserting "alters bearer obligations of the United States or" immediately before "produces".
Section 2F1.1 is amended in the title by inserting "Altered or" immediately following "than".
§2D1.6Use of Communication Facility in Committing Drug Offense
17. Synopsis of Proposed Amendment: This amendment clarifies the operation of §§2D1.6 (Use of Communication Facility in Committing Drug Offense; Attempt or Conspiracy), 2E1.1 (Unlawful Conduct Relating to Racketeer Influenced and Corrupt Organizations), 2E1.2 (Interstate or Foreign Travel or Transportation in Aid of a Racketeering Enterprise), and 2E1.3 (Violent Crimes in Aid of Racketeering Activity) in a manner consistent with the operation of §1B1.2 (Applicable Guidelines) governing the selection of the offense guideline section. This amendment addresses a circuit conflict by specifying that the "underlying offense", for purposes of these guidelines, is determined on the basis of the conduct of which the defendant was convicted. Compare United States v. McCall, 915 F.2d 811 (2d Cir. 1990) with United States v. Carrozza, 4 F.3d 70 (1st Cir. 1993). In addition, this amendment deletes an application note from §§2E1.1, 2E1.2, and 2E1.3 that is unnecessary and is not included in other sections of the Guidelines Manual.
Proposed Amendment: The Commentary to §2D1.6 captioned "Application Notes" is amended by deleting "Note" and inserting in lieu thereof "Notes", by renumbering Note 1 as Note 2, by inserting the following as new Note 1:
"1. `Offense level applicable to the underlying offense' means the offense level determined by using the offense guideline applicable to the controlled substance offense that the defendant was convicted of using a communication facility to commit, cause, or facilitate.".
The Commentary to §2E1.1 captioned "Application Notes" is amended in Note 1 by deleting "Where there is more than one underlying offense" and inserting in lieu thereof "The `offense level applicable to the underlying racketeering activity' under subsection (a)(2) means the offense level under the applicable offense guideline, as determined under the provisions of §1B1.2 (Applicable Guidelines)(i.e., on the basis of the conduct of which the defendant was convicted). In the case of more than one underlying offense (for this determination, apply the provisions of Application Note 5 of the Commentary to §1B1.2 as if in a conspiracy case)";
by inserting "apply Chapter Three, Parts A, B, and C to subsection (a)(1), and" immediately following "level,", by deleting "both (a)(1) and" and inserting in lieu thereof "subsection"; by deleting Note 3, and by renumbering the remaining notes accordingly.
The Commentary to §2E1.2 captioned "Application Notes" is amended in Note 1 by deleting "Where there is more than one underlying offense" and inserting in lieu thereof "The `offense level applicable to the underlying crime of violence or other unlawful activity' under subsection (a)(2) means the offense level under the applicable offense guideline, as determined under the provisions of §1B1.2 (Applicable Guidelines) (i.e., on the basis of the conduct of which the defendant was convicted). In the case of more than one underlying offense (for this determination, apply the provisions of Application Note 5 of the Commentary to §1B1.2 as if in a conspiracy case)",
The Commentary to §2E1.3 captioned "Application Notes" is amended by deleting "Notes" and inserting in lieu thereof "Note"; in Note 1 by adding the following as the first sentence:
"The `offense level applicable to the underlying crime or racketeering activity' under subsection (a)(2) means the offense level under the applicable offense guideline, as determined under the provisions of §1B1.2 (Applicable Guidelines)(i.e., on the basis of the conduct of which the defendant was convicted).";
and by deleting Note 2.
Chapter Two, Parts B, F, and T (Theft, Fraud, and Tax)
18.Synopsis of Proposed Amendment: This amendment makes the following changes to guideline §§2B1.1, 2F1.1, and 2T4.1: (1) eliminates the more-than-minimal-planning enhancement in §§2B1.1 and 2F1.1 and other guidelines, and builds a corresponding increase into the loss tables, and creates a two-level enhancement like the one in §2T4.1 for offenses involving "sophisticated means"; (2) increases the base offense level of §2B1.1 (the theft guideline) and revises the loss tables in §§2B1.1, 2F1.1, and 2T4.1 (theft, fraud, and tax offenses, respectively); (3) changes the current one-level increments
in the loss tables in §§2B1.1, 2F1.1, and 2T4.1 (to two-level increments or a combination of one and two-level increments); (4) increases the severity of the loss tables in §§2B1.1, 2F1.1, and 2T4.1 at higher loss amounts; (5) adds telemarketing enhancements to §§2B1.1 and 2F1.1; (6) adds a cross reference in §2F1.1 for offenses involving arson; and (7) makes conforming technical changes.
(1) Elimination of More-than-Minimal-Planning Enhancement for Sophisticated Means.
First, the amendment eliminates the specific offense characteristic for more-than- minimal planning from the theft and fraud guidelines (and a number of other guidelines), and phases in a corresponding increase in the loss tables (or, in the case of option 3, into the base offense level). Arguments for revising or eliminating the "more than minimal planning" specific offense characteristic include: (I) the workload (and related litigation) burden of the provision is considerable; in each of the over 9,000 cases sentenced under these guidelines, some consideration is given to whether this SOC is applicable; (ii) the definition of more than minimal planning is arguably unclear or ambiguous; (iii) past Commission studies have shown that the provision is applied unevenly, thus contributing to unwarranted disparity; and (iv) the adjustment is applied with such frequency, particularly at higher dollar amounts, that it arguably should be built into the loss table or even the base offense level. (The more-than-minimal planning adjustment is applied in 58.7% of all cases sentenced under §2B1.1; of all cases under §2F1.1, it is applied in 82.5% (and over 89% of cases involving loss amounts greater than $10,000)).
The amendment proposes creating a two-level specific offense characteristic in §§2B1.1 and 2F1.1 (and other guidelines that currently have a more-than-minimal planning enhancement) that would apply if "sophisticated means" were used to impede discovery of the existence or extent of the offense (with a floor of level 12). Replacing the more-than-minimal planning enhancement with one for sophisticated means will increase the fact-finding and application burden compared to just deleting the more-than-minimal planning enhancement. In addition, in the proposed loss table options at levels at or above the point where the two levels from more-than-minimal planning are automatically built into the loss table, defendants who would receive the new two-level enhancement for sophisticated means would effectively receive an additional two-level increase, in addition to any others provided in this amendment. It is unclear how many cases would be affected by this new enhancement. In conjunction with the addition of this enhancement, it is proposed that the current specific offense characteristic involving use of foreign bank accounts found at subsection (b)(5) (providing a floor of 12 for such offenses), be deleted and incorporated into the definition of "sophisticated means" for all guidelines that currently have a more-than-minimal planning enhancement. In FY 1995, of the 6,019 cases sentenced under §2F1.1, 3 (.05%) received the enhancement for use of foreign bank accounts.
(2) Amendments to Loss Tables
Three options are presented for changes to the loss tables for the theft and fraud guidelines. A corresponding change is proposed to the tax loss table in §2T4.1 (for options 1 and 2; if option 3 is chosen, a conforming tax loss table will be prepared). Depending on the option chosen, the necessity of factual findings for the lowest loss amounts is eliminated by building these loss amounts into the base offense level.
Options 1 and 2 of this proposal provide identical base offense levels of 6 for the theft and fraud guidelines. Option 3 provides a base offense level of 8.
(3) Loss Tables - Two-level Increments.
Second, in options one and three the loss tables are changed from the current one- level increments to two-level increments, so that broader ranges of dollar loss are assigned to a particular offense level increase. Option two generally retains one-level increments, but provides two-level increments for losses above $2,000 and $5,000, and for loss increments above $5,000,000. Option two retains cutting points that are very similar to the current loss tables, but has no consistent pattern in the selection of the cutting points.
Several arguments suggest use of two-level increments in the loss tables, as proposed in Options One and Three: (i) reduction in probation officer and judicial workload (broader loss ranges will produce fewer "cutting points"; for example, a two- level loss table - with no other changes - would go from 18 to 10 cutting points); (ii) increased consistency with other offense guidelines (most alternative base offense levels and specific offense characteristics increase by at least two-level increments; for example, the drug table); and (iii) a table with two-level increments is less mechanistic and lessens the appearance of false precision compared to the current structure. On the other hand, one-level increments provide a smoother increase in levels relative to loss amounts, with a minimized "cliff" effect and somewhat greater proportionality.
(4) Loss Tables - Increased Severity at Higher Loss Amounts.
Fourth, all three options provide for increases in the severity levels assigned to the higher loss amounts, in addition to the increase built into the table (or base offense level) in response to the elimination of the more-than-minimal planning adjustment.
There are several reasons why consideration should be given to raising the severity levels for cases involving the largest loss amounts. First, the draft report of the Commission-sponsored "just punishment" study suggests that respondents identified certain kinds of cases that may warrant greater punishment for higher loss amounts than currently provided by the loss tables in the theft and fraud guidelines: embezzlement or theft cases involving bank officials or postal workers; fraudulent solicitation for a nonexistent charity; fraud involving false mortgage application with no intent to repay; and forgery or fraud involving stolen credit cards or writing bad checks.
Second, the draft results of the Federal Judicial Center survey of federal district court judges and chief probation officers reveal sentiment that §§2B1.1 and 2F1.1 under punish defendants whose offenses involve large monetary losses.
Third, the Department of Justice and the Criminal Law Committee of the Judicial Conference have recommended that consideration be given to raising the severity levels at higher loss amounts for theft and fraud cases to more appropriately punish large-scale offenders.
(5) Telemarketing Enhancements.
The fifth change proposed by this amendment is to add specific offense characteristics to §2F1.1 for offense conduct involving telemarketing. In the 1994 omnibus crime bill, Congress raised the statutory maximum for telemarketing offenses by five years (18 U.S.C. § 2326(1)), and by ten years for such offenses that victimized ten or more persons over age 55 or targeted persons over the age of 55 (18 U.S.C. § 2326(2)). This amendment provides a two-level increase in §2F1.1 for offenses involving telemarketing, and an additional, cumulative 2-level increase if the offense victimized 10 or more persons over the age of 55, or targeted persons over the age of 55.
(6) Cross Reference - Arson.
The sixth change proposed by the amendment is to add to the fraud guideline a cross reference to §2K1.4 (Arson, Property Damage by Use of Explosives), if the offense involved arson or property destruction by use of explosives, and if the resulting offense level is greater. Offenses that involve an underlying arson may be charged as frauds. The proposed cross reference better ensures that similar offenses are treated similarly.
(7) Conforming Technical Changes.
The amendment also makes the following technical changes: In §2B1.1, subsection (b)(3) is proposed for deletion because the floor of 6 for offenses involving the theft of mail is unnecessary given the proposal to increase the base offense level for all offenses under this guideline from 4 to 6; in §2B1.1, subsection (b)(4)(B) providing a four-level increase for offenses involving receiving stolen property is revised to provide a two-level increase because of the proposed deletion of more than minimal planning (i.e., the current, four-level enhancement is applied in the alternative to a two-level enhancement for more than minimal planning; if the more-than-minimal planning enhancement is subsumed in the loss tables, it is necessary to reduce the four-level enhancement for fencing stolen property to two levels to maintain equipoise). In §2F1.1, subsection (b)(2)(B), providing an alternative (to the more-than-minimal-planning) two- level increase for a scheme involved the defrauding of more than one victim, is proposed for deletion because the concerns are handled by building the levels for more than minimal planning into the loss table; and the definition of more-than-minimal planning in §1B1.1, comment. (n.1(f)), is proposed for deletion and replacement by the definition of "sophisticated means", with corresponding changes to §§2A2.1(b)(1), 2B1.1(b)(4)(A), 2B1.3(b)(3), and 2B2.1(b)(1). The definition of "sophisticated means" currently in §2T1.1 is revised accordingly.
(A) Proposed Amendment:
The Commentary to §1B1.1 captioned "Application Notes" is amended by deleting application note 1(f) in its entirety and inserting in lieu thereof:
"?Sophisticated means to impede discovery of the offense or its extent,' includes conduct that is more complex or demonstrates greater intricacy or planning than a routine effort to impede discovery of the offense or its extent. An enhancement would be applied, for example where the defendant used transactions through corporate shells or fictitious entities, or used foreign bank accounts or transactions to conceal the nature or extent of the fraudulent conduct."
* * *
Section 2B1.1(a) (Base Offense Level) is amended by deleting "4" and inserting in lieu thereof [Options 1 and 2: "6"; Option 3:"8"].
Section 2B1.1 is amended by deleting (b)(1) in its entirety, and inserting in lieu thereof, one of the following three options:
OPTION ONE
["(b)Specific Offense Characteristics
(1) If the loss was $5,000 or more, increase the offense level as follows:
Loss (Apply the Greatest)Increase in Level
(A) $5,000 or more add 2
(B) $10,000 or more add 4
(C) $22,500 or more add 6
(D) $50,000 or more add 8
(E) $120,000 or more add 10
(F) $275,000 or more add 12
(G) $650,000 or more add 14
(H) $1,500,000 or more add 16
(I) $3,500,000 or more add 18
(J) $8,000,000 or more add 20
(K) $18,000,000 or more add 22
(L) $40,000,000 or more add 24
(M) $90,000,000 or more add 26"].
OPTION TWO
["(b)Specific Offense Characteristics
(1) If the loss exceeded $2,000, increase the offense level as follows:
Loss (Apply the Greatest)Increase in Level
(A) more than $2,000 add 2
(B) more than $5,000 add 4
(C) more than $10,000 add 5
(D) more than $20,000 add 6
(E) more than$40,000 add 7
(F) more than $70,000 add 8
(G) more than $120,000 add 9
(H) more than $200,000 add 10
(I) more than $350,000 add 11
(J) more than$500,000 add 12
(K) more than$800,000 add 13
(L) more than$1,500,000 add 14
(M) more than $2,500,000add 15
(N) more than $5,000,000add 16
(O) more than $7,500,000add 18
(P) more than $15,000,000 add 20
(Q) more than $25,000,000 add 22
(R) more than $50,000,000 add 24"].
OPTION THREE
["(b)Specific Offense Characteristics
(1) If the loss exceeded $5,000, increase the offense level as follows:
Loss (Apply the Greatest)Level of Increase
(A) more than $5,000 add 2
(B) more than $20,000 add 4
(C) more than $60,000 add 6
(D) more than $100,000 add 8
(E) more than $250,000 add 10
(F) more than $500,000 add 12
(G) more than $750,000 add 14
(H) more than $1,000,000add 16
(I) more than $3,000,000add 18
(J) more than $7,000,000add 20
(K) more than $12,000,000add 22
(L) more than $20,000,000add 24
(M) more than $40,000,000add 26
(N) more than $80,000,000add 28"].
Section 2B1.1 is amended by deleting (b)(3) in its entirety and inserting in lieu thereof:
"If sophisticated means were used to impede discovery of the offense or its extent, increase by 2 levels. If the resulting offense level is less than level 12, increase to level 12."
Section 2B1.1 is amended by deleting (b)(4)(A) in its entirety and by amending (b)(4)(B) by deleting "(B)" and by deleting and changing "4 levels" to "2 levels".
* * *
OPTION THREE ONLY
[Section 2F1.1(a) is amended by deleting "6" and inserting in lieu thereof "8"].
Section 2F1.1 is amended by deleting (b)(1) in its entirety, and inserting in lieu thereof, one of the following three options:
OPTION ONE
["(b)Specific Offense Characteristics
(1) If the loss was $5,000 or more, increase the offense level as follows:
Loss (Apply the Greatest)Increase in Level
(A) $5,000 or more add 2
(B) $10,000 or more add 4
(C) $22,500 or more add 6
(D) $50,000 or more add 8
(E) $120,000 or more add 10
(F) $275,000 or more add 12
(G) $650,000 or more add 14
(H) $1,500,000 or more add 16
(I) $3,500,000 or more add 18
(J) $8,000,000 or more add 20
(K) $18,000,000 or more add 22
(L) $40,000,000 or more add 24
(M) $90,000,000 or more add 26"].
OPTION TWO
["(b)Specific Offense Characteristics
(1) If the loss exceeded $2,000, increase the offense level as follows:
Loss (Apply the Greatest)Increase in Level
(A) more than $2,000 add 2
(B) more than $5,000 add 4
(C) more than $10,000 add 5
(D) more than $20,000 add 6
(E) more than$40,000 add 7
(F) more than $70,000 add 8
(G) more than $120,000 add 9
(H) more than $200,000 add 10
(I) more than $350,000 add 11
(J) more than$500,000 add 12
(K) more than$800,000 add 13
(L) more than$1,500,000 add 14
(M) more than $2,500,000add 15
(N) more than $5,000,000add 16
(O) more than $7,500,000add 18
(P) more than $15,000,000 add 20
(Q) more than $25,000,000 add 22
(R) more than $50,000,000 add 24"].
OPTION THREE
["(b)Specific Offense Characteristics
(1) If the loss exceeded $5,000, increase the offense level as follows:
Loss (Apply the Greatest)Level of Increase
(A) more than $5,000 add 2
(B) more than $20,000 add 4
(C) more than $60,000 add 6
(D) more than $100,000 add 8
(E) more than $250,000 add 10
(F) more than $500,000 add 12
(G) more than $750,000 add 14
(H) more than $1,000,000add 16
(I) more than $3,000,000add 18
(J) more than $7,000,000add 20
(K) more than $12,000,000add 22
(L) more than $20,000,000add 24
(M) more than $40,000,000add 26
(N) more than $80,000,000add 28"].
* * *
Section 2F1.1 is amended by deleting (b)(5) in its entirety, and by deleting (b)(2) in its entirety, and inserting in lieu thereof:
"If sophisticated means were used to impede discovery of the offense or its extent, increase by 2 levels. If the resulting offense level is less than level 12, increase to level 12."
Section 2F1.1 is amended by inserting the following:
"(6) If the offense involved telemarketing, increase by 2 levels.
(7) If the offense [involved telemarketing conduct and either] victimized 10 or more persons over the age of 55, or targeted persons over the age of 55, increase by 2 levels."
Section 2F1.1 is amended by adding the following cross reference as (c)(2):
"(2) If the offense involved arson or property destruction by use of explosives, apply §2K1.4 (Arson, Property Damage by Use of Explosives), if the resulting offense level is greater than that determined above."
* * *
§2T1.1 is amended by deleting (b)(5) in its entirety and inserting in lieu thereof:
"If sophisticated means were used to impede discovery of the offense or its extent, increase by 2 levels. If the resulting offense level is less than level 12, increase to level 12."
Section 2T4.1 is amended by deleting the tax table, and inserting in lieu thereof, one of the following two options:
OPTION ONE
["Tax Loss Level
(A) $5,000 or more 8
(B) $10,000 or more 10
(C) $22,500 or more 12
(D) $50,000 or more 14
(E) $120,000 or more 16
(F) $275,000 or more 18
(G) $650,000 or more 20
(H) $1,500,000 or more 22
(I) $3,500,000 or more 24
(J) $8,000,000 or more 26
(K) $18,000,000 or more 28
(L) $40,000,000 or more 30
(M) $90,000,000 or more 32"]
OPTION TWO
["Tax Loss (Apply the Greatest) Level
(A) 2,000 or less 8
(B) more than $2,000 9
(C) more than $5,000 10
(D) more than $10,000 11
(E) more than $20,000 12
(F) more than $40,000 13
(G) more than $70,000 14
(H) more than $120,000 15
(I) more than $200,000 16
(J) more than $350,000 17
(K) more than $500,000 18
(L) more than $800,000 19
(M) more than $1,500,00020
(N) more than $2,500,00021
(O) more than $5,000,00022
(P) more than $7,500,00024
(Q) more than $15,000,00026
(R) more than $25,000,00028
(S) more than $50,000,00030"]
Issues for Comment:
The following issues for comment are provided to facilitate informed comment on the issues raised by the preceding amendment.
(1) Loss Tables: In addition to requesting input on the options in the proposed amendment, the Commission requests comment on whether §§2B1.1 and 2F1.1 should have different base offense levels and different starting points and cutting points for the loss tables. If so, the Commission requests comment on what the respective base offense levels should be (for example, level 6 for §2B1.1 and level 8 for §2F1.1), on what loss amount should trigger the first increase ($2,000, $5,000, or $10,000 for §2B1.1; $2,000, $5,000, $10,000, or $20,000 for §2F1.1), and what the cutting points of the loss tables should be.
(2) Telemarketing offenses: In addition to the issues raised by the proposed amendment, the Commission invites comment on whether the guidelines should provide a broader enhancement for other frauds involving the victimization or targeting of persons over the age of 55. The Commission also invites comment on whether the guidelines should be amended to add a Chapter Three adjustment that provides a two-level increase if the offense, regardless of type, involves the victimization of 10 or more persons over the age of 55 or the targeting of persons over the age of 55. Alternatively, the Commission invites comment on whether §3A1.1 (Vulnerable Victim) should be amended to provide that it will always apply when an offense involves the victimization of 10 or more persons over the age of 55 or the targeting of persons over the age of 55, or to provide an enhancement for offenses involving telemarketing conduct.
(3) Cross Reference: The Commission invites comment on whether the following cross reference should be adopted: "If the offense involved a bribe, gratuity, commercial bribe or kickback, or similar conduct, apply §2C1.2 (Offering, Giving, Soliciting, or Receiving a Gratuity); §2C1.5 (Payment to Obtain Public Office); §2C1.6 (Loan or Gratuity to Bank Examiner, or Gratuity for Adjustment of Farm Indebtedness, or Procuring Bank Loan, or Discount of Commercial Paper); §2C1.7 (Fraud Involving Deprivation of the Intangible Right to the Honest Services of Public Officials; Conspiracy to Defraud by Interference with Governmental Functions); or §2B4.1 (Bribery in Procurement of Bank Loan and Other Commercial Bribery), whichever is the most applicable, would provide that the cross reference should apply only if the listed offense conduct results in a higher offense level."
(4) Consolidation of §§2B1.1 and 2F1.1: Currently there is sometimes confusion about whether a given offense should be sentenced using §2B1.1 or §2F1.1 and which definition of loss should be used. The Commission invites comment on whether §§2B1.1 and 2F1.1 should be consolidated into one guideline and, if so, what provisions of each should be retained in the consolidated guideline, and how the two definitions of loss should be combined into one. Alternatively, the Commission invites comment on whether the definitions of loss in §§2B1.1 and 2F1.1 should be combined into one definition and, if so, what provisions of each should be retained in the consolidated definition and how the new definition should be worded.
These issues for comment solicit input on possible changes to the definition of loss in §§2B1.1 and 2F1.1 to clarify the Commission's intent, resolve issues raised by case law, and aid in consistency of application.
(1) Standard of causation: Currently, the definition of loss in §2F1.1 does not specify a standard of causation governing whether unintended or unexpected losses are to be included in the loss calculation under the guidelines. See United States v. Neadle, 72 F.3d 1104, 1108-11 (3d Cir.) (holding defendant fraudulently posted required $750,000 bond to open insurance company accountable for $23 million in property damage from a hurricane that the defendant's insurance company lacked the assets to cover, loss undoubtedly would have gone unreimbursed regardless of defendant's insurance fraud), amended, 79 F.3d 14 (3d Cir.), cert. denied, 117 S. Ct. 238 (1996).
The Commission invites comment on whether to clarify the standard of causation necessary to link a harm with an offense under §1B1.3(a)(3). More specifically, the Commission requests comment on whether it should include only harm proximately caused (or directly caused) by the defendant's conduct, or whether it should include all harm that would not have occurred "but for" the defendant's conduct. Finally, the Commission invites comment on whether, regardless of which causation standard is adopted, the Commission should invite the possibility of a departure when losses far exceed those intended or reasonably foreseen by the defendant.
(2) Market value: The current definition of loss in theft and fraud uses the concept of market value as an important factor in determining loss. The Commission invites comment on whether this concept should be clarified to specify whether retail, wholesale, or black market value is intended, depending on the nature of the offense. In addition, the Commission invites comment on whether market value includes the enhanced value on the black market when it exceeds fair market value, or alternatively, whether black market value should be a departure consideration.
(3) Consequential damages and administrative costs - inclusion of interest: The definition of loss in fraud provides that reasonably foreseeable consequential damages and administrative costs are included in determinations of loss only in cases involving procurement fraud or product substitution. The Commission invites comment on whether consequential damages should be used in determinations of loss in all theft and/or fraud cases, and if so, how such damages should be determined. Alternatively, should the special rule in fraud on the inclusion of consequential damages and administrative costs in loss determinations in procurement fraud and product substitution cases be deleted? The Commission further invites comment on whether, even if consequential damages, generally, are not included in loss, they might be used as an offset against the value of the benefit received by the victim(s).
Although the definition of loss in the theft and fraud guidelines excludes interest "that could have been earned had the funds not been stolen," some courts have interpreted the definition of loss to permit inclusion in loss of the interest that the defendant agreed to pay in connection with the offense. Cf., United States v. Hoyle, 33 F.3d 415, 419 (4th Cir. 1994) ("[I]nterest shall not be included to determine loss for sentencing purposes.") with United States v. Gilberg, 75 F.3d 15, 18-19 (1st Cir. 1996) (including in loss interest on fraudulently procured mortgage loan); and United States v. Henderson, 19 F.3d 917, 928-29 (5th Cir.) ("Interest should be included if, as here, the victim had a reasonable expectation of receiving interest from the transaction."), cert. denied, 115 S. Ct. 207 (1994).
The Commission invites comment on whether the definition of loss should be clarified to (A) exclude all interest from loss; (B) to permit inclusion of bargained-for interest, or (C) to allow consideration of bargained-for interest as a departure factor only.
(4) Benefit received by victims: Currently, with the exception of payments made and collateral pledged in fraudulent loan cases, the definition of loss does not specify whether benefit received by the victim(s) reduces the amount of the loss. Courts have generally, although not unanimously, held that loss in fraud cases must be reduced by any benefits received by the victim(s). See, e.g.,United States v. Maurello, 76 F.3d 1304, 1311-12 (3d Cir. 1996) (calculating loss by subtracting value of satisfactory legal services from amount of fees paid to bogus lawyer); United States v. Reddeck, 22 F.3d 1504, 1513 (10th Cir. 1994) (reducing loss by value of education received from bogus university); United States v. Mucciante, 21 F. 3d 1228, 1237-38 (2d Cir.)(refusing to reduce loss by amount that defendant "repaid...as part of a meretricious effort to maintain [the victims'] confidences" in a non-Ponzi scheme), cert. denied 115 S. Ct. 361 (1994).
A Ponzi scheme is a particular kind of criminal offense that may warrant explicit treatment in the definition of loss. A Ponzi scheme is defined as "a fraudulent investment scheme in which money placed by later investors pays artificially high dividends to the original investors, thereby attracting even larger investments." Bryan A. Garner, A Dictionary of Modern Legal Usage 671 (2d ed. 1995). Several cases raise some important issues about Ponzi schemes.
The Seventh Circuit was the first to address the issue of calculating loss from a Ponzi scheme. In United States v. Holiusa, 13 F.3d 1043, 1044-45 (6th Cir. 1994), the defendant perpetuated a Ponzi scheme by appropriating $11,625,739 from "investors" and returning approximately $8,000,000 in "interest." The appellate court rejected the district court holding that because the defendant intended "to defraud all of the victims of their money" he was accountable for the full $11,625,739. Id. at 1045; see also U.S.S.G. §2F1.1, comment. (n. 7) ("[I]f an intended loss that the defendant was attempting to inflict can be determined, this figure will be used if it is greater than the actual loss."). The court held that "[t]he full amount invested was not the probable or intended loss because [the defendant] did not at any point intend to keep the entire sum.... Because he did not intend to and did not keep the full $11.6 million, that amount does not reflect the actual or intended loss, and is not an appropriate basis for sentencing." Holiusa, 13 F.3d at 1046-47. The court remanded the case, instructing the district court not to include in loss "amounts that [the defendant] both intended to and indeed did return to investors." Id. at 1048; see also United States v. Wolfe, 71 F.3d 611, 618 (6th Cir. 1995) (following Holiusa).
While the Seventh Circuit saw the concept of intended loss as the focus of Ponzi scheme loss calculation, the Eleventh Circuit took a different approach in United States v. Orton, 73 F.3d 331 (11th Cir. 1996). The Orton defendant had received $525,865.66 from and returned $242,513.65 to the "investors." Twelve investors received more than they had invested; the total lost by the other investors was $391,540.01. Id. at 333. The Eleventh Circuit adopted what it dubbed the "loss to losing victims" method: it held the defendant accountable for "the net losses of all victims who lost all or part of the money they invested." Id. at 334. The money that the defendant received from and returned to those investors who ended up with a net gain did not enter into the loss calculation. The Orton defendant was therefore held accountable for $391,540.01.
The Commission invites comment on whether the value of the benefit received by the victim(s) of an offense should be used to reduce the amount of the loss and, if so, how benefits that are more theoretical than real should be valued. The Commission also invites comment on whether the money returned to victim-investors (including "profits") in a Ponzi scheme should be included in the calculation of loss. In addition, the Commission invites comment on whether in cases involving fraudulent representations of a defendant's professional license or training, the loss should be reduced by the value of the "benefit/service" given to the victim (or to someone else on the victim's behalf) by the defendant, or whether it should be determined based on the full charge for the "service."
(5) Diversion of government benefits: The Commission invites comment on how loss should be determined in fraud cases involving the diversion of government program benefits and kickbacks. These cases tend to present special difficulties in determining or estimating loss and determining gain. At the same time, there is a strong societal interest in the integrity of government programs. More specifically, the Commission invites comment on whether the "value of benefits diverted" in such cases should be reduced by the "benefits" or services provided by the participants. In addition, the Commission invites comment on whether special rules should be devised for such cases to facilitate the determination/estimation of loss or gain, such as a special rule that determines loss or gain based on a percentage of the total value of the benefits diverted and, if so, what percentage should be chosen (such as 5-40%). The Commission also invites comment on whether the nature and seriousness of such offenses require a specific offense characteristic to target such conduct and/or a floor offense level to guarantee a minimum offense level.
(6) Pledged collateral and payments: Currently, the value of pledged collateral is determined based on the net proceeds of the sale of the collateral, or if the sale has not been accomplished prior to sentencing, then the market value of the collateral reduced by the expected cost of the sale. See, e.g., United States v. Barrett, 51 F.3d 86, 90-91 (7th Cir. 1995) (including in loss the drop in value of property securing fraudulently obtained loans). The Commission invites comment on how and when to determine loss in respect to crediting pledged collateral and payments. More specifically, the Commission invites comment on whether to clarify the current rule that only payments made prior to discovery of the offense are to be credited in determining loss, whether to clarify or change the current rule that provides that the value of the pledged collateral is determined by the amount the lending institution has recovered or can expect to recover, and whether to clarify what constitutes "discovery of the offense." In addition, the Commission invites comment on whether the value of the pledged collateral should be determined at the time it is pledged or at the time of discovery of the offense, or some other time. In addition, the Commission invites comment on whether unforeseen (or unforeseeable) decreases (or increases) in the value of the collateral should affect the credit to be used to determine loss.
(7) Gain: Currently gain can be used in lieu of loss in certain limited circumstances under §2F1.1. Compare United States v. Kopp, 951 F.2d 521, 530 (3d Cir. 1991) (holding that gain cannot be used if loss is measurable even if loss is zero), with United States v. Haddock, 12 F.3d 950, 960 (10th Cir. 1993) (allowing gain to be used as alternative at all times). The Commission invites comment on whether to clarify the issue of whether or not gain may be used in lieu of loss If the rule should be clarified, should upward departures be encouraged if the amount of gain substantially exceeds loss? Alternatively, the Commission invites comment on whether gain should be used whenever it is greater than actual or intended loss and, if so, how gain should be determined. The Commission also invites comment on whether there are situations in which gain should be used for theft-type cases under §2B1.1.
(8) Intended loss: Intended loss is to be used in fraud cases when it is determined to be greater than actual loss. §2F1.1, comment. (n. 7). Some courts have held that intended loss should be limited by concepts of "economic reality" or impossibility. Compare United States v. Moored, 38 F.3d 1419, 1425 (6th Cir. 1994) (focusing on loss that defendant "realistically intended") with United States v. Lorenzo, 995 F.2d 1448, 1460 (9th Cir.) ("[T]he amount of [intended] loss . . . does not have to be realistic."), cert. denied, 510 U.S. 881 (1993).
The Commission invites comment on whether the current rule should be changed to provide that loss is to be based primarily on actual loss, with intended loss available only as a possible ground for departure. The Commission further invites comment on whether, if the substance of the current rule is to be retained, the magnitude of intended loss should be limited by the amount that the defendant realistically could have succeeded in obtaining. More specifically, the Commission invites comment on whether intended loss should be limited by concepts of "economic reality" or impossibility, such as in a government sting operation where there can be no loss, or in a false insurance claims case in which the defendant submits a claim for an amount in excess of the fair market value of the item.
(9) Risk of loss: Currently, in some cases defendants obtain loans by fraudulent means but the loss is determined to be zero because of pledged collateral and payments made prior to discovery. The Commission invites comment on whether the definition of loss should be revised to include the concept of risk of loss, so as to ensure higher punishment levels for defendants who commit serious crimes that, because of the value of pledged collateral or payments made before discovery, result in low or even zero loss, and if so, how the risk of loss might be determined. See §2F1.1, comment. (n. 7).
(10) Loss amounts that over- or understate the significance of the offense: The Commission invites comment on whether to provide guidance for applying the current provision allowing departure where the loss amount over- or understates the significance of the offense. See §2F1.1, comment. (n. 10). More specifically, the Commission invites comment on whether to specify that where the loss amount included through §1B1.3 (Relevant Conduct) is far in excess of the benefit personally derived by the defendant, the court might depart down to an offense level corresponding to the loss amount that more appropriately measures the defendant's culpability. Alternatively, the Commission invites comment on whether to provide a specific offense characteristic or special rule to reduce the offense level in such cases.
19(A). Issue for comment: Section 511 of the Antiterrorism and Effective Death Penalty Act of 1996 pertains to biological weapons. It incorporates attempt and conspiracy into 18 U.S.C. § 175, which prohibits the production, stockpiling, transferring