UNITED STATES SENTENCING COMMISSION ONE COLUMBUS CIRCLE, NE SUITE 2-500, SOUTH LOBBY WASHINGTON, DC 20002-8002 (202

) 502-4500 FAX (202) 502-4699

September 15, 2009 To all recipients of the Guidelines Manual: As Acting Chair of the United States Sentencing Commission, I am pleased to transmit this edition of the Guidelines Manual, which incorporates new guidelines and amendments effective November 1, 2009. The 2009 amendments include some substantive, clarifying, and technical revisions to guidelines, policy statements, and commentary. Appendix B, which sets forth the principal statutory provisions governing sentencing, is contained in a separate volume. That volume also is enclosed. A supplement to Appendix C setting forth guideline amendments effective November 1, 2004, through November 1, 2009, and the reasons for those amendments, also is enclosed. You should already have the existing two-volume set of Appendix C, which chronicles guideline amendments effective November 1, 1987, through November 5, 2003, and the reasons for those amendments. As always, the Commission encourages judges, probation officers, prosecuting and defense attorneys, and other interested individuals to submit suggestions for improving the guidelines. Please send comments to: United States Sentencing Commission, Thurgood Marshall Federal Judiciary Building, One Columbus Circle, N.E., Washington, D.C. 200028002, Attention: Office of Public Affairs.

Sincerely,

Ricardo H. Hinojosa

UNITED STATES SENTENCING COMMISSION GUIDELINES MANUAL
RICARDO H. HINOJOSA Acting Chair RUBEN CASTILLO Vice Chair WILLIAM K. SESSIONS III Vice Chair WILLIAM B. CARR, JR. Vice Chair BERYL A. HOWELL Commissioner DABNEY L. FRIEDRICH Commissioner EDWARD F. REILLY, JR. Commissioner, Ex-officio JONATHAN WROBLEWSKI Commissioner, Ex-officio
This document contains the text of the Guidelines Manual incorporating amendments effective January 15, 1988; June 15, 1988; October 15, 1988; November 1, 1989; November 1, 1990; November 1, 1991; November 27, 1991; November 1, 1992; November 1, 1993; September 23, 1994; November 1, 1994; November 1, 1995; November 1, 1996; May 1, 1997; November 1, 1997; November 1, 1998; May 1, 2000; November 1, 2000; December 16, 2000; May 1, 2001; November 1, 2001; November 1, 2002; January 25, 2003; April 30, 2003; October 27, 2003; November 1, 2003; November 5, 2003; November 1, 2004; October 24, 2005; November 1, 2005; March 27, 2006; September 12, 2006; November 1, 2006; May 1, 2007; November 1, 2007; February 6, 2008; March 3, 2008; May 1, 2008; November 1, 2008; and November 1, 2009.

RECOMMENDED CITATION FORM

United States Sentencing Commission Guidelines, Policy Statements, and Commentary may be cited as follows:

I.

Full citation form United States Sentencing Commission, Guidelines Manual, §3E1.1 (Nov. 2009)

II.

Abbreviated citation form
[using USSG as the designated short form for United States Sentencing Guidelines]

! a guideline — USSG §2D1.1 ! a policy statement — USSG §6A1.1, p.s. ! commentary designated as an application note — USSG §2B1.1, comment. (n.1) ! commentary designated as background — USSG §2B1.1, comment. (backg'd.) ! commentary designated as an introduction — USSG Ch.3, Pt.D, intro. comment. ! an appendix to the Guidelines Manual — USSG App. C

ii

TABLE OF CONTENTS
CHAPTER ONE -Introduction, Authority, and General Application Principles.. . . . . . . . . . . Part A-Introduction and Authority.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part B-General Application Principles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . CHAPTER TWO - Offense Conduct. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part A-Offenses Against the Person. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Homicide.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Assault. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Criminal Sexual Abuse and Offenses Related to Registration as a Sex Offender. . . . . . . . . 4. Kidnapping, Abduction, or Unlawful Restraint. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Air Piracy and Offenses Against Mass Transportation Systems. . . . . . . . . . . . . . . . . . . . . . 6. Threatening or Harassing Communications, Hoaxes, Stalking, and Domestic Violence.. . . Part B-Basic Economic Offenses.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Theft, Embezzlement, Receipt of Stolen Property, Property Destruction, and Offenses Involving Fraud or Deceit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Burglary and Trespass. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Robbery, Extortion, and Blackmail. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Commercial Bribery and Kickbacks.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Counterfeiting and Infringement of Copyright or Trademark. . . . . . . . . . . . . . . . . . . . . . . . 6. Motor Vehicle Identification Numbers.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part C-Offenses Involving Public Officials and Violations of Federal Election Campaign Laws. . . Part D-Offenses Involving Drugs And Narco-Terrorism.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Unlawful Manufacturing, Importing, Exporting, Trafficking, or Possession; Continuing Criminal Enterprise. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Unlawful Possession. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Regulatory Violations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part E-Offenses Involving Criminal Enterprises and Racketeering.. . . . . . . . . . . . . . . . . . . . . . . . . . 1. Racketeering. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Extortionate Extension of Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Gambling.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Trafficking in Contraband Cigarettes and Smokeless Tobacco. . . . . . . . . . . . . . . . . . . . . . . 5. Labor Racketeering.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part F-[Deleted]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part G-Offenses Involving Commercial Sex Acts, Sexual Exploitation of Minors, and Obscenity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Promoting A Commercial Sex Act or Prohibited Sexual Conduct.. . . . . . . . . . . . . . . . . . . . 2. Sexual Exploitation of a Minor.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Obscenity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part H-Offenses Involving Individual Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Civil Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Political Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Privacy and Eavesdropping.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Peonage, Involuntary Servitude, Slave Trade, and Child Soldiers.. . . . . . . . . . . . . . . . . . . . iii Page 1 1 16 47 48 48 51 57 70 73 75 80 80 108 111 118 121 126 128 139 139 186 188 190 190 193 194 196 196 200 201 201 208 218 222 222 224 225 228

Part I-[Not Used] Part J-Offenses Involving the Administration of Justice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part K-Offenses Involving Public Safety.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Explosives and Arson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Firearms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Mailing Injurious Articles.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part L-Offenses Involving Immigration, Naturalization, and Passports. . . . . . . . . . . . . . . . . . . . . . . 1. Immigration.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Naturalization and Passports.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part M-Offenses Involving National Defense and Weapons of Mass Destruction. . . . . . . . . . . . . . . 1. Treason. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Sabotage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Espionage and Related Offenses.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Evasion of Military Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Prohibited Financial Transactions and Exports, and Providing Material Support to Designated Foreign Terrorist Organizations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. Nuclear, Biological, and Chemical Weapons and Materials, and Other Weapons of Mass Destruction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part N-Offenses Involving Food, Drugs, Agricultural Products, Consumer Products, and Odometer Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Tampering with Consumer Products. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Food, Drugs, Agricultural Products, and Consumer Products. . . . . . . . . . . . . . . . . . . . . . . . 3. Odometer Laws and Regulations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part O-[Not Used] Part P-Offenses Involving Prisons and Correctional Facilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part Q-Offenses Involving the Environment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Environment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Conservation and Wildlife. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part R-Antitrust Offenses.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part S-Money Laundering and Monetary Transaction Reporting. . . . . . . . . . . . . . . . . . . . . . . . . . . . Part T-Offenses Involving Taxation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Income Taxes, Employment Taxes, Estate Taxes, Gift Taxes, and Excise Taxes (Other Than Alcohol, Tobacco, and Customs Taxes). . . . . . . . . . . . . . . . 2. Alcohol and Tobacco Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Customs Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Tax Table. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part U-[Not Used] Part V-[Not Used] Part W-[Not Used] Part X-Other Offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Conspiracies, Attempts, Solicitations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Aiding and Abetting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Accessory After the Fact.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Misprision of Felony.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv 329 329 332 332 334 292 296 296 303 306 310 316 316 325 326 328 231 240 240 247 260 261 261 268 273 273 273 274 279 279 283 287 287 289 290

5. 6. 7.

All Other Felony Offenses and Class A Misdemeanors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . Offenses Involving Use of a Minor in a Crime of Violence.. . . . . . . . . . . . . . . . . . . . . . . . . Offenses Involving Border Tunnels And Submersible and Semi-Submersible Vessels. . . .

334 336 337

Part Y-[Not Used] Part Z-[Not Used] CHAPTER THREE - Adjustments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part A-Victim-Related Adjustments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part B-Role in the Offense.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part C-Obstruction and Related Adjustments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part D-Multiple Counts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part E-Acceptance of Responsibility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . CHAPTER FOUR - Criminal History and Criminal Livelihood. . . . . . . . . . . . . . . . . . . . . . . . . Part A-Criminal History.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part B-Career Offenders and Criminal Livelihood. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . CHAPTER FIVE - Determining the Sentence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part A-Sentencing Table. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part B-Probation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part C-Imprisonment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part D-Supervised Release.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part E-Restitution, Fines, Assessments, Forfeitures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part F-Sentencing Options. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part G-Implementing the Total Sentence of Imprisonment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part H-Specific Offender Characteristics. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part I-[Not Used] Part J-Relief From Disability.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part K-Departures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Substantial Assistance to Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Other Grounds for Departure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Early Disposition Programs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . CHAPTER SIX - Sentencing Procedures, Plea Agreements, and Crime Victims’ Rights. . . . . Part A-Sentencing Procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part B-Plea Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 454 455 455 456 473 474 474 478 339 339 345 352 358 371 374 374 390 401 402 404 413 419 427 435 441 449

v

CHAPTER SEVEN - Violations of Probation and Supervised Release. . . . . . . . . . . . . . . . . . . . Part A-Introduction to Chapter Seven. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Authority.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Resolution of Major Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. The Basic Approach. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. A Concluding Note. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part B-Probation and Supervised Release Violations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . CHAPTER EIGHT - Sentencing of Organizations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part A-General Application Principles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part B-Remedying Harm from Criminal Conduct, and Effective Compliance and Ethics Program. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Remedying Harm from Criminal Conduct. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Effective Compliance and Ethics Program. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part C-Fines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Determining the Fine - Criminal Purpose Organizations. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Determining the Fine - Other Organizations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Implementing the Sentence of a Fine. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Departures from the Guideline Fine Range. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part D-Organizational Probation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part E-Special Assessments, Forfeitures, and Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part F-Violations of Probation - Organizations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . APPENDIX A - Statutory Index. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . INDEX TO GUIDELINES MANUAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

483 483 483 483 484 486 486 487 495 496 500 500 503 509 509 509 525 528 532 537 539 540 563

SUPPLEMENTARY VOLUMES APPENDIX B - Selected Sentencing Statutes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . APPENDIX C (Volume I) - Amendments to the Guidelines Manual. . . . . . . . . . . . . . . . . . . . . . (effective November 1, 1997, and earlier) APPENDIX C (Volume II) - Amendments to the Guidelines Manual. . . . . . . . . . . . . . . . . . . . . (effective November 1, 1998, through November 5, 2003) SUPPLEMENT to APPENDIX C - Amendments to the Guidelines Manual. . . . . . . . . . . . . . . (effective November 1, 2004, through November 1, 2009)

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November 1, 2009

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Ch. 1 Pt. A

CHAPTER ONE - INTRODUCTION, AUTHORITY, AND GENERAL APPLICATION PRINCIPLES
PART A - INTRODUCTION AND AUTHORITY Introductory Commentary Subparts 1 and 2 of this Part provide an introduction to the Guidelines Manual describing the historical development and evolution of the federal sentencing guidelines. Subpart 1 sets forth the original introduction to the Guidelines Manual as it first appeared in 1987, with the inclusion of amendments made occasionally thereto between 1987 and 2000. The original introduction, as so amended, explained a number of policy decisions made by the United States Sentencing Commission ("Commission") when it promulgated the initial set of guidelines and therefore provides a useful reference for contextual and historical purposes. Subpart 2 further describes the evolution of the federal sentencing guidelines after the initial guidelines were promulgated. Subpart 3 of this Part states the authority of the Commission to promulgate federal sentencing guidelines, policy statements, and commentary. 1. ORIGINAL INTRODUCTION TO THE GUIDELINES MANUAL

The following provisions of this Subpart set forth the original introduction to this manual, effective November 1, 1987, and as amended through November 1, 2000: 1. Authority

The United States Sentencing Commission ("Commission") is an independent agency in the judicial branch composed of seven voting and two non-voting, ex officio members. Its principal purpose is to establish sentencing policies and practices for the federal criminal justice system that will assure the ends of justice by promulgating detailed guidelines prescribing the appropriate sentences for offenders convicted of federal crimes. The guidelines and policy statements promulgated by the Commission are issued pursuant to Section 994(a) of Title 28, United States Code. 2. The Statutory Mission

The Sentencing Reform Act of 1984 (Title II of the Comprehensive Crime Control Act of 1984) provides for the development of guidelines that will further the basic purposes of criminal punishment: deterrence, incapacitation, just punishment, and rehabilitation. The Act delegates broad authority to the Commission to review and rationalize the federal sentencing process. The Act contains detailed instructions as to how this determination should be made, the most important of which directs the Commission to create categories of offense behavior and offender characteristics. An offense behavior category might consist, for example, of "bank robbery/committed with a gun/$2500 taken." An offender characteristic category might be

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November 1, 2009

"offender with one prior conviction not resulting in imprisonment." The Commission is required to prescribe guideline ranges that specify an appropriate sentence for each class of convicted persons determined by coordinating the offense behavior categories with the offender characteristic categories. Where the guidelines call for imprisonment, the range must be narrow: the maximum of the range cannot exceed the minimum by more than the greater of 25 percent or six months. 28 U.S.C. § 994(b)(2). Pursuant to the Act, the sentencing court must select a sentence from within the guideline range. If, however, a particular case presents atypical features, the Act allows the court to depart from the guidelines and sentence outside the prescribed range. In that case, the court must specify reasons for departure. 18 U.S.C. § 3553(b). If the court sentences within the guideline range, an appellate court may review the sentence to determine whether the guidelines were correctly applied. If the court departs from the guideline range, an appellate court may review the reasonableness of the departure. 18 U.S.C. § 3742. The Act also abolishes parole, and substantially reduces and restructures good behavior adjustments. The Commission’s initial guidelines were submitted to Congress on April 13, 1987. After the prescribed period of Congressional review, the guidelines took effect on November 1, 1987, and apply to all offenses committed on or after that date. The Commission has the authority to submit guideline amendments each year to Congress between the beginning of a regular Congressional session and May 1. Such amendments automatically take effect 180 days after submission unless a law is enacted to the contrary. 28 U.S.C. § 994(p). The initial sentencing guidelines and policy statements were developed after extensive hearings, deliberation, and consideration of substantial public comment. The Commission emphasizes, however, that it views the guideline-writing process as evolutionary. It expects, and the governing statute anticipates, that continuing research, experience, and analysis will result in modifications and revisions to the guidelines through submission of amendments to Congress. To this end, the Commission is established as a permanent agency to monitor sentencing practices in the federal courts. 3. The Basic Approach (Policy Statement)

To understand the guidelines and their underlying rationale, it is important to focus on the three objectives that Congress sought to achieve in enacting the Sentencing Reform Act of 1984. The Act’s basic objective was to enhance the ability of the criminal justice system to combat crime through an effective, fair sentencing system. To achieve this end, Congress first sought honesty in sentencing. It sought to avoid the confusion and implicit deception that arose out of the pre-guidelines sentencing system which required the court to impose an indeterminate sentence of imprisonment and empowered the parole commission to determine how much of the sentence an offender actually would serve in prison. This practice usually resulted in a substantial reduction in the effective length of the sentence imposed, with defendants often serving only about one-third of the sentence imposed by the court. Second, Congress sought reasonable uniformity in sentencing by narrowing the wide disparity in sentences imposed for similar criminal offenses committed by similar offenders. Third, Congress sought proportionality in sentencing through a system that imposes appropriately different sentences for criminal conduct of differing severity.

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November 1, 2009

GUIDELINES MANUAL

Ch. 1 Pt. A

Honesty is easy to achieve: the abolition of parole makes the sentence imposed by the court the sentence the offender will serve, less approximately fifteen percent for good behavior. There is a tension, however, between the mandate of uniformity and the mandate of proportionality. Simple uniformity -- sentencing every offender to five years -- destroys proportionality. Having only a few simple categories of crimes would make the guidelines uniform and easy to administer, but might lump together offenses that are different in important respects. For example, a single category for robbery that included armed and unarmed robberies, robberies with and without injuries, robberies of a few dollars and robberies of millions, would be far too broad. A sentencing system tailored to fit every conceivable wrinkle of each case would quickly become unworkable and seriously compromise the certainty of punishment and its deterrent effect. For example: a bank robber with (or without) a gun, which the robber kept hidden (or brandished), might have frightened (or merely warned), injured seriously (or less seriously), tied up (or simply pushed) a guard, teller, or customer, at night (or at noon), in an effort to obtain money for other crimes (or for other purposes), in the company of a few (or many) other robbers, for the first (or fourth) time. The list of potentially relevant features of criminal behavior is long; the fact that they can occur in multiple combinations means that the list of possible permutations of factors is virtually endless. The appropriate relationships among these different factors are exceedingly difficult to establish, for they are often context specific. Sentencing courts do not treat the occurrence of a simple bruise identically in all cases, irrespective of whether that bruise occurred in the context of a bank robbery or in the context of a breach of peace. This is so, in part, because the risk that such a harm will occur differs depending on the underlying offense with which it is connected; and also because, in part, the relationship between punishment and multiple harms is not simply additive. The relation varies depending on how much other harm has occurred. Thus, it would not be proper to assign points for each kind of harm and simply add them up, irrespective of context and total amounts. The larger the number of subcategories of offense and offender characteristics included in the guidelines, the greater the complexity and the less workable the system. Moreover, complex combinations of offense and offender characteristics would apply and interact in unforeseen ways to unforeseen situations, thus failing to cure the unfairness of a simple, broad category system. Finally, and perhaps most importantly, probation officers and courts, in applying a complex system having numerous subcategories, would be required to make a host of decisions regarding whether the underlying facts were sufficient to bring the case within a particular subcategory. The greater the number of decisions required and the greater their complexity, the greater the risk that different courts would apply the guidelines differently to situations that, in fact, are similar, thereby reintroducing the very disparity that the guidelines were designed to reduce. In view of the arguments, it would have been tempting to retreat to the simple, broad category approach and to grant courts the discretion to select the proper point along a broad sentencing range. Granting such broad discretion, however, would have risked correspondingly broad disparity in sentencing, for different courts may exercise their discretionary powers in different ways. Such an approach would have risked a return to the wide disparity that Congress established the Commission to reduce and would have been contrary to the Commission’s mandate set forth in the Sentencing Reform Act of 1984.
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In the end, there was no completely satisfying solution to this problem. The Commission had to balance the comparative virtues and vices of broad, simple categorization and detailed, complex subcategorization, and within the constraints established by that balance, minimize the discretionary powers of the sentencing court. Any system will, to a degree, enjoy the benefits and suffer from the drawbacks of each approach. A philosophical problem arose when the Commission attempted to reconcile the differing perceptions of the purposes of criminal punishment. Most observers of the criminal law agree that the ultimate aim of the law itself, and of punishment in particular, is the control of crime. Beyond this point, however, the consensus seems to break down. Some argue that appropriate punishment should be defined primarily on the basis of the principle of "just deserts." Under this principle, punishment should be scaled to the offender’s culpability and the resulting harms. Others argue that punishment should be imposed primarily on the basis of practical "crime control" considerations. This theory calls for sentences that most effectively lessen the likelihood of future crime, either by deterring others or incapacitating the defendant. Adherents of each of these points of view urged the Commission to choose between them and accord one primacy over the other. As a practical matter, however, this choice was unnecessary because in most sentencing decisions the application of either philosophy will produce the same or similar results. In its initial set of guidelines, the Commission sought to solve both the practical and philosophical problems of developing a coherent sentencing system by taking an empirical approach that used as a starting point data estimating pre-guidelines sentencing practice. It analyzed data drawn from 10,000 presentence investigations, the differing elements of various crimes as distinguished in substantive criminal statutes, the United States Parole Commission’s guidelines and statistics, and data from other relevant sources in order to determine which distinctions were important in pre-guidelines practice. After consideration, the Commission accepted, modified, or rationalized these distinctions. This empirical approach helped the Commission resolve its practical problem by defining a list of relevant distinctions that, although of considerable length, was short enough to create a manageable set of guidelines. Existing categories are relatively broad and omit distinctions that some may believe important, yet they include most of the major distinctions that statutes and data suggest made a significant difference in sentencing decisions. Relevant distinctions not reflected in the guidelines probably will occur rarely and sentencing courts may take such unusual cases into account by departing from the guidelines. The Commission’s empirical approach also helped resolve its philosophical dilemma. Those who adhere to a just deserts philosophy may concede that the lack of consensus might make it difficult to say exactly what punishment is deserved for a particular crime. Likewise, those who subscribe to a philosophy of crime control may acknowledge that the lack of sufficient data might make it difficult to determine exactly the punishment that will best prevent that crime. Both groups might therefore recognize the wisdom of looking to those distinctions that judges and legislators have, in fact, made over the course of time. These established distinctions are ones that the community believes, or has found over time, to be important from either a just deserts or crime control perspective.

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as determined in a presentence report. and who recognize that these guidelines are. suggested or required departure. the Commission developed these guidelines as a practical effort toward the achievement of a more honest. After all. Charge Offense Sentencing. As an aid to understanding the guidelines. frightened bystanders. it departed from the data at different points for various important reasons. After spending considerable time and resources exploring alternative approaches. The Commission’s initial efforts in this direction. who believe the best is often the enemy of the good. the data revealed inconsistencies in treatment. equitable. incremental improvements in the status quo. refused to stop when ordered. In addition. Rather. (a) Real Offense vs. and raced away damaging property during his escape. at the sentencing hearing.November 1. Despite these policy-oriented departures from pre-guidelines practice. commentary in the guidelines explains others. even to formalize and rationalize the status quo. might have used a gun. 1 Pt. or before a parole commission hearing officer. One of the most important questions for the Commission to decide was whether to base sentences upon the actual conduct in which the defendant engaged regardless of the charges for which he was indicted or convicted ("real offense" sentencing). this introduction briefly discusses several of those issues. injured a teller. or upon the conduct that constitutes the elements of the offense for which the defendant was charged and of which he was convicted ("charge offense" sentencing). and builds upon. for example. 4. as in the case of the Anti-Drug Abuse Act of 1986 that imposed increased and mandatory minimum sentences. such as punishing economic crime less severely than other apparently equivalent behavior. mostly for practical reasons. The guidelines may prove acceptable. The Commission initially sought to develop a pure real offense system. in a sense. A pure charge offense system would overlook some of the harms that did not constitute statutory elements of the offenses of which the defendant was convicted. proportional. The Guidelines’ Resolution of Major Issues (Policy Statement) The guideline-drafting process required the Commission to resolve a host of important policy questions typically involving rather evenly balanced sets of competing considerations. The sentencing court and the parole commission took account of the conduct in which the defendant actually engaged. and therefore effective sentencing system. but the first step in an evolutionary process. The guidelines will not please those who wish the Commission to adopt a single philosophical theory and then work deductively to establish a simple and perfect set of categorizations and distinctions. the guidelines represent an approach that begins with. for example. the pre-guidelines sentencing system was. carried out in the spring and early summer of 1986. A bank robber. To make such a system work. would have required the Commission to decide precisely which harms to take into account. 2009 GUIDELINES MANUAL Ch. this type of system. uniform. empirical data. proved unproductive. to those who seek more modest. A pure real offense system would sentence on the basis of all identifiable conduct. The Commission found no practical way to combine and account –5– . however. even though establishing offense values on this basis would help eliminate disparity because the data represent averages.000. Congressional statutes. how to add them up. as the Act contemplates. A The Commission did not simply copy estimates of pre-guidelines practice as revealed by the data. taken $50. and what kinds of procedures the courts should use to determine the presence or absence of disputed factual elements.

Of course. the Commission moved closer to a charge offense system. For example.000. or the amount of money actually taken. such a system risked return to wide disparity in sentencing practice.Ch.4 (Physical Condition. The Commission intends the sentencing courts to treat each guideline as carving out a "heartland. a sentencing court may control any inappropriate manipulation of the indictment through use of its departure power. the guidelines take account of a number of important. quadratic roots and other mathematical operations that the Commission considered too complex to be workable. § 3553(b). The sentencing statute permits a court to depart from a guideline-specified sentence only when it finds "an aggravating or mitigating circumstance of a kind. however. Moreover. nor did it find a practical way to reconcile the need for a fair adjudicatory procedure with the need for a speedy sentencing process given the potential existence of hosts of adjudicated "real harm" facts in many typical cases." a set of typical cases embodying the conduct that each guideline describes. one to which a particular guideline linguistically applies but where conduct significantly differs from the norm. In the Commission’s view. One of the most important is the potential it affords prosecutors to influence sentences by increasing or decreasing the number of counts in an indictment. 1 Pt.C. National Origin. –6– . the third sentence of §5H1.19 (Post-Sentencing Rehabilitative Efforts) list several factors that the court cannot take into account as grounds for departure. commonly occurring real offense elements such as role in the offense. Furthermore. the last sentence of §5K2. the Commission will closely monitor charging and plea agreement practices and will make appropriate adjustments should they become necessary. the guidelines treat a three-count indictment." 18 U. specific offense characteristics. for example. the hundreds of overlapping and duplicative statutory provisions that make up the federal criminal law forced the Commission to write guidelines that are descriptive of generic conduct rather than guidelines that track purely statutory language.10 (Race.12 (Coercion and Duress). the defendant’s actual conduct (that which the prosecutor can prove in court) imposes a natural limit upon the prosecutor’s ability to increase a defendant’s sentence. This system. not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. When a court finds an atypical case. however. Creed.000. whether or not mentioned anywhere else in the guidelines. 2009 for the large number of diverse harms arising in different circumstances. and §5K2. The Commission recognized that a charge offense system has drawbacks of its own. and SocioEconomic Status). the court may consider whether a departure is warranted. For another.S. Section 5H1. In its initial set of guidelines submitted to Congress in April 1987. With those specific exceptions. the Commission has written its rules for the treatment of multicount convictions with an eye toward eliminating unfair treatment that might flow from count manipulation. or to a degree. A GUIDELINES MANUAL November 1. Sex. through alternative base offense levels. does contain a significant number of real offense elements. cross references. (b) Departures. the presence of a gun. Finally. Religion. and adjustments. the same as a single-count indictment charging sale of 300 grams of heroin or theft of $30. The effort proposed as a solution to these problems required the use of. the Commission does not intend to limit the kinds of factors. Including Drug or Alcohol Dependence or Abuse). §5H1. that could constitute grounds for departure in an unusual case. For one thing. each count of which charges sale of 100 grams of heroin or theft of $10.12 (Lack of Guidance as a Youth and Similar Circumstances).

the Commission. the Commission believes that despite the courts’ legal freedom to depart from the guidelines. Second. Part K lists factors that the Commission believes may constitute grounds for departure. This is because the guidelines. Of course. Such rare occurrences are precisely the type of events that the courts’ departure powers were designed to cover -. It is important to note that the guidelines refer to two different kinds of departure.. By monitoring when courts depart from the guidelines and by analyzing their stated reasons for doing so and court decisions with references thereto. Nearly ninety percent of all federal criminal cases involve guilty pleas and many of these cases involve some form of plea agreement.. The Commission decided not to make major changes in plea agreement practices in the –7– .g. Part K (Departures) or on grounds not mentioned in the guidelines. the list is not exhaustive.November 1. It may rest upon grounds referred to in Chapter Five. seek to take account of those factors that the Commission’s data indicate made a significant difference in pre-guidelines sentencing practice. over time. Others argued that guidelines that failed to control and limit plea agreements would leave untouched a "loophole" large enough to undo the good that sentencing guidelines would bring. however. 2009 GUIDELINES MANUAL Ch. offense by offense. First. it also believes there may be cases in which a departure outside suggested levels is warranted. it is difficult to prescribe a single set of guidelines that encompasses the vast range of human conduct potentially relevant to a sentencing decision. for example. The Commission expects that most departures will reflect the suggestions and that the courts of appeals may prove more likely to find departures "unreasonable" where they fall outside suggested levels.unusual cases outside the range of the more typical offenses for which the guidelines were designed. the guidelines specifically include this factor to enhance the sentence. will be able to refine the guidelines to specify more precisely when departures should and should not be permitted.g. with progressive changes. The Commission recognizes that there may be other grounds for departure that are not mentioned. this is generally because the sentencing data did not permit the Commission to conclude that the factor was empirically important in relation to the particular offense. 1 Pt. Where the guidelines do not specify an augmentation or diminution. fraud). While Chapter Five. physical injury) may infrequently occur in connection with a particular crime (e. The Commission is a permanent body. Some commentators on early Commission guideline drafts urged the Commission not to attempt any major reforms of the plea agreement process on the grounds that any set of guidelines that threatened to change pre-guidelines practice radically also threatened to make the federal system unmanageable. The Commission also recognizes that the initial set of guidelines need not do so. Thus. such cases will be highly infrequent. A second type of departure will remain unguided. where the presence of physical injury made an important difference in pre-guidelines sentencing practice (as in the case of robbery or assault). an important factor (e. (c) Plea Agreements. over many years. In its view. The first involves instances in which the guidelines provide specific guidance for departure by analogy or by other numerical or non-numerical suggestions. empowered by law to write and rewrite guidelines. The Commission intends such suggestions as policy guidance for the courts. they will not do so very often. A The Commission has adopted this departure policy for two reasons.

will serve as a significant deterrent. fraud. the Commission will seek to further regulate the plea agreement process as appropriate. that in the Commission’s view are "serious. or home detention). For offense levels nine and ten. 2000.S. but rather to provide guidance by issuing general policy statements concerning the acceptance of plea agreements in Chapter Six. (d) Probation and Split Sentences. Part B (Plea Agreements). tax evasion. the guidelines create a clear. The rules set forth in Fed. The Commission expects the guidelines to have a positive. amendment 603. the court may substitute probation for a prison term. First. if the policy statements relating to plea agreements are followed. not prison. More specifically. A GUIDELINES MANUAL November 1. it subsequently addressed the issue in Amendment 603. . 1 Pt. antitrust offenses. The Commission. . Under pre-guidelines sentencing practice. under Rule 11(e). Importantly. the guidelines create a norm to which courts will likely refer when they decide whether. In light of this information and analysis. but the probation must include confinement conditions (community confinement. The statute provides that the guidelines are to "reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense . has not dealt with the single acts of aberrant behavior that still may justify probation at higher offense levels through departures. P. In the event a prosecutor and defense attorney explore the possibility of a negotiated plea. intermittent confinement. The Commission concluded that the definite prospect of prison.* *Note: Although the Commission had not addressed "single acts of aberrant behavior" at the time the Introduction to the Guidelines Manual originally was written. insider trading." 28 U. circumvention of the Sentencing Reform Act and the guidelines should not occur. Crim. the remainder to be served on supervised release with a condition of community confinement or home detention. effective November 1. (See Supplement to Appendix C. R. For offense levels eleven and twelve.) –8– . courts sentenced to probation an inappropriately high percentage of offenders guilty of certain economic crimes. For offense levels one through eight. rationalizing impact upon plea agreements for two reasons. Second. This fact alone should help to reduce irrationality in respect to actual sentencing outcomes. § 994(j). the guidelines work as follows in respect to a first offender. 2009 initial guidelines. particularly when compared with pre-guidelines practice where probation. was the norm. such as theft.Ch. of course. 11(e) govern the acceptance or rejection of such agreements. and embezzlement. to accept or to reject a plea agreement or recommendation. even though the term may be short." The Commission’s solution to this problem has been to write guidelines that classify as serious many offenses for which probation previously was frequently given and provide for at least a short period of imprisonment in such cases. the court must impose at least one-half the minimum confinement sentence in the form of prison confinement. . the sentencing court may elect to sentence the offender to probation (with or without confinement conditions) or to a prison term.C. they will no longer work in the dark. definite expectation in respect to the sentence that a court will impose if a trial takes place. The Commission will collect data on the courts’ plea practices and will analyze this information to determine when and why the courts accept or reject plea agreements and whether plea agreement practices are undermining the intent of the Sentencing Reform Act.

There are hundreds of such provisions scattered throughout the United States Code. The guidelines also provide general rules for aggravating punishment in light of multiple harms charged separately in separate counts. like several state sentencing commissions. They essentially provide: (1) when the conduct involves fungible items (e. If it did. even if it increases the extent to which punishment is warranted. but also more technical. how should it treat technical or administratively-related criminal violations? In respect to the first problem. A defendant who assaults others during a fight. (2) when nonfungible harms are involved. Regulatory statutes. These statutes pose two problems: first. In addition. To find all potential violations would involve examination of each individual federal regulation. These rules are set out in Chapter Three. Because of this practical difficulty. and second.g. Part D (Multiple Counts).. the amounts are added and the guidelines apply to the total amount. separate drug transactions or thefts of money). Such criminal provisions often describe not only substantive offenses.November 1. A (e) Multi-Count Convictions. (f) Regulatory Offenses. but his conduct does not necessarily warrant ten times the punishment. The guidelines have been written in order to minimize the possibility that an arbitrary casting of a single transaction into several counts will produce a longer sentence. would lead to sentences of life imprisonment -sentences that neither just deserts nor crime control theories of punishment would justify. These rules may produce occasional anomalies. each of which makes up a separate count in an indictment. for example. administratively-related offenses such as failure to keep accurate records or to provide requested information. with the assistance of the Department of Justice and several regulatory agencies. may warrant more punishment if he injures ten people than if he injures one. each additional harm. The Commission. does not necessarily warrant a proportionate increase in punishment. 1 Pt. 2009 GUIDELINES MANUAL Ch. which criminal regulatory offenses were particularly important in light of the need for enforcement of the general regulatory scheme. the sentencing court will have adequate power to prevent such a result through departures. which criminal regulatory provisions should the Commission initially consider. but normally they will permit an appropriate degree of aggravation of punishment for multiple offenses that are the subjects of separate counts. many of the simplest offenses. the Commission found that it could not comprehensively treat all regulatory violations in the initial set of guidelines. –9– . Several individual guidelines provide special instructions for increasing punishment when the conduct that is the subject of that count involves multiple occurrences or has caused several harms. though primarily civil in nature. sometimes contain criminal provisions in respect to particularly harmful activity. The difficulty is that when a defendant engages in conduct that causes several harms. The Commission addressed these offenses in the initial guidelines. the offense level for the most serious count is increased (according to a diminishing scale) to reflect the existence of other counts of conviction. has found it particularly difficult to develop guidelines for sentencing defendants convicted of multiple violations of law. for reasons that are often fortuitous. the Commission sought to determine.

nor be likely to lead. the same failure may be accompanied by a significant likelihood that substantive harm will occur. The Commission has also examined its sentencing ranges in light of their likely impact upon prison population. analogous sources. He might fail. and in other relevant. Specific legislation. A GUIDELINES MANUAL November 1. While the Commission has not considered itself bound by pre-guidelines sentencing practice. the Commission has developed a system for treating technical recordkeeping and reporting offenses that divides them into four categories. to keep an accurate record of toxic substance transport. inasmuch as those who pleaded guilty under pre-guidelines practice often received lesser sentences. insofar as they reflect policy decisions made by the Commission (rather than – 10 – . a guideline may include one or more specific offense characteristics in an effort to distinguish those types of defendants who received probation from those who received more severe sentences. 6) aimed at the first type of recordkeeping or reporting offense. where a high percentage of persons received probation under pre-guidelines practice. (g) Sentencing Ranges. required the Commission to promulgate guidelines that will lead to substantial prison population increases. in the parole guidelines. in many instances. 1 Pt. The Commission’s Supplementary Report on the Initial Sentencing Guidelines (1987) contains a comparison between estimates of preguidelines sentencing practice and sentences under the guidelines. It also examined the sentences specified in federal statutes. For example.S. The structure of a typical guideline for a regulatory offense provides a low base offense level (e. A specific offense characteristic also provides that a recordkeeping or reporting offense that conceals a substantive offense will have the same offense level as the substantive offense. Third. In some instances. the guidelines permit the court to impose lesser sentences on those defendants who accept responsibility for their misconduct. it may make a release of a toxic substance more likely. § 994(h)). the same failure may have led to substantive harm. the Commission estimated the average sentences served within each category under the pre-guidelines sentencing system. a downward departure may be warranted. or that are likely to occur. Specific offense characteristics designed to reflect substantive harms that do occur in respect to some regulatory offenses. short sentences of incarceration for all offenders in a category have been substituted for a pre-guidelines sentencing practice of very wide variability in which some defendants received probation while others received several years in prison for the same offense. 2009 In respect to the second problem. to the release or improper handling of any toxic substance. the offender may have failed to fill out a form intentionally. for example. In determining the appropriate sentencing ranges for each offense. Guideline sentences. These increases will occur irrespective of the guidelines. First. will approximate average pre-guidelines practice and adherence to the guidelines will help to eliminate wide disparity. increase the offense level. For defendants who provide substantial assistance to the government in the investigation or prosecution of others. but without knowledge or intent that substantive harm would likely follow.. The guidelines themselves.C. Second. such as the Anti-Drug Abuse Act of 1986 and the career offender provisions of the Sentencing Reform Act of 1984 (28 U. in the simplest of cases. it has not attempted to develop an entirely new system of sentencing on the basis of theory alone. Fourth. Moreover.g.Ch. but that failure may not lead. the failure may represent an effort to conceal a substantive harm that has occurred.

It began with those that were the basis for a significant number of prosecutions and sought to place them in a rational order. the guidelines will apply to more than 90 percent of all felony and Class A misdemeanor cases in the federal courts. Again. and policy judgments. The Commission has established a sentencing table that for technical and practical reasons contains 43 levels.C. little purpose will be served in protracted litigation trying to determine. Thus. The table overlaps offense levels meaningfully. Yet. a sample of 10. It examined the many hundreds of criminal statutes in the United States Code. Each level in the table prescribes ranges that overlap with the ranges in the preceding and succeeding levels. are imperfect. Although the data available to it. The guidelines.S. Where a table has many small monetary distinctions. are projected to lead to an increase in prison population that computer models. Both prosecution and defense will realize that the difference between one level and another will not necessarily make a difference in the sentence that the court imposes. A legislated mandatory minimum or career offender sentences). for example. (h) The Sentencing Table. it will cure wide disparity. many of the individual guidelines refer to tables that correlate amounts of money with offense levels. experience with the guidelines will lead to additional information and provide a firm empirical basis for consideration of revisions. § 994(b)(2)). Because of time constraints and the nonexistence of – 11 – . Similarly. the levels work to increase a sentence proportionately.000 or $11. each distinction would become more important and litigation over which category an offender fell within would become more likely. the parole guidelines. A change of six levels roughly doubles the sentence irrespective of the level at which one starts. permit courts to exercise the greatest permissible range of sentencing discretion. If a money table were to make only a few distinctions. A Concluding Note The Commission emphasizes that it drafted the initial guidelines with considerable caution. whether $10. It developed additional distinctions relevant to the application of these provisions and it applied sentencing ranges to each resulting category. By overlapping the ranges. At the same time. as representing too little a departure from pre-guidelines sentencing practice. Finally. These tables often have many rather than a few levels. works proportionately. in keeping with the statutory requirement that the maximum of any range cannot exceed the minimum by more than the greater of 25 percent or six months (28 U. The Commission is a permanent body that can amend the guidelines each year.000 was obtained as a result of a fraud.000 convictions. and at the same time preserves the maximum degree of allowable discretion for the court within each level. In doing so. 1 Pt. produced by the Commission and the Bureau of Prisons in 1987. estimated at approximately 10 percent over a period of ten years. it minimizes the likelihood of litigation because the precise amount of money involved is of considerably less importance. 5. it relied upon pre-guidelines sentencing practice as revealed by its own statistical analyses based on summary reports of some 40. The Commission recognizes that some will criticize this approach as overly cautious. the table should discourage unnecessary litigation. like all data.000 augmented presentence reports. the reason is to minimize the likelihood of unnecessary litigation. 2009 GUIDELINES MANUAL Ch.November 1.

Moreover. while lacking the mandatory features that Congress enacted. at 379 (internal quotation marks and citations omitted). 361 (1989). 2009 statistical information. The Supreme Court alluded to this in Mistretta v. The Court concluded that an advisory guideline system would "continue to move sentencing in Congress’ preferred direction. . and as such they continue to play an important role in the sentencing court’s determination of an appropriate sentence in a particular case. Booker. [w]e have no doubt that in the hands of the Commission "the criteria which Congress has supplied are wholly adequate for carrying out the general policy and purpose" of the Act. . In Booker. The first theme is that the guidelines are the product of a deliberative process that seeks to embody the purposes of sentencing set forth in the Sentencing Reform Act. This statement finds resonance in a line of Supreme Court cases that. 488 U. The Court reasoned that an advisory guideline system. and directed it to develop guidelines and policy statements for sentencing courts to use when sentencing offenders convicted of federal crimes. The continuing importance of the guidelines in federal sentencing was further acknowledged by the Court in United States v. echo two themes. helping to avoid excessive sentencing disparities while maintaining flexibility sufficient to individualize sentences where necessary. in light of application experience. CONTINUING EVOLUTION AND ROLE OF THE GUIDELINES The Sentencing Reform Act of 1984 changed the course of federal sentencing. Although Congress has delegated significant discretion to the Commission to draw judgments from its analysis of existing sentencing practice and alternative sentencing models. taken together. as new criminal statutes are enacted. . The mandate rested on congressional awareness that sentencing is a dynamic field that requires continuing review by an expert body to revise sentencing policies. labor-intensive task for which delegation to an expert body is especially appropriate. retains other features that help to further congressional objectives. Their exclusion does not reflect any judgment regarding their seriousness and they will be addressed as the Commission refines the guidelines over time. An advisory – 12 – .S. the Act created the United States Sentencing Commission as an independent agency in the Judicial Branch. 1 Pt. Id. Among other things.S. A GUIDELINES MANUAL November 1. even as that case rendered the guidelines advisory in nature. 2. An advisory guideline system continues to assure transparency by requiring that sentences be based on articulated reasons stated in open court that are subject to appellate review. Therein the Court stated: Developing proportionate penalties for hundreds of different crimes by a virtually limitless array of offenders is precisely the sort of intricate. submit to Congress appropriate modifications of the guidelines and recommended changes in criminal statutes. the Court held that the imposition of an enhanced sentence under the federal sentencing guidelines based on the sentencing judge’s determination of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant violated the Sixth Amendment. at 264-65. and establish education and research programs. United States. 543 U. which upheld the constitutionality of both the federal sentencing guidelines and the Commission against nondelegation and separation of powers challenges. including providing certainty and fairness in meeting the purposes of sentencing.Ch. avoiding unwarranted sentencing disparities. and maintaining sufficient flexibility to permit individualized sentences when warranted. and as more is learned about what motivates and controls criminal behavior." Id. some offenses that occur infrequently are not considered in the guidelines. it empowered the Commission with ongoing responsibilities to monitor the guidelines. 220 (2005).

As the Court acknowledged in Rita: – 13 – . A guideline system also continues to promote certainty and predictability in sentencing.C. The Supreme Court reinforced this view in Rita v. as contemplated by the Sentencing Reform Act. United States."). therefore. take them into account when sentencing. at 2465 (stating that a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range). 1 Pt. while not bound to apply the Guidelines. and then the factors under 18 U.November 1. The Court concluded that "[t]he upshot is that the sentencing statutes envision both the sentencing judge and the Commission as carrying out the same basic § 3553(a) objectives. 586. The appellate court "first ensure[s] that the district court committed no significant procedural error. and that the Commission’s process for promulgating guidelines results in "a set of Guidelines that seek to embody the § 3553(a) considerations. to comply with" the basic aims of sentencing as set out above. thereby enabling the parties to better anticipate the likely sentence based on the individualized facts of the case. Congress referred to the basic sentencing objectives that the statute sets forth in 18 U. the guidelines are evolutionary in nature.S. 991(b)(1). In instructing both the sentencing judge and the Commission what to do. . the Court relied heavily on the complementary roles of the Commission and the sentencing court in federal sentencing. must consider the properly calculated guideline range. 127 S. and to revise the guidelines accordingly. 128 S." id. at 597. . must .C. 2456 (2007). See Rita. Id. the other at wholesale. § 3553(a). Ct. United States. Booker.S. at 2463 (emphasis in original). §§ 994(f). They are the product of the Commission’s fulfillment of its statutory duties to monitor federal sentencing law and practices." Id. even in an advisory guideline system. the Guidelines should be the starting point and the initial benchmark. (a)(5). . The district court. 127 S. Ct."). In Rita. the one. § 3553(a). the Commission must take into account the purposes of sentencing as set forth in 18 U. including the extent of any variance from the Guidelines range. 128 S. district courts are required to properly calculate and consider the guidelines when sentencing.C.] . § 3553(a)(4). to seek public input on the operation of the guidelines. § 3553(a) . 127 S. 2009 GUIDELINES MANUAL Ch. The provision also tells the sentencing judge to "impose a sentence sufficient. Congressional statutes then tell the Commission to write Guidelines that will carry out these same § 3553(a) objectives. The appellate court engages in a two-step process upon review. [and] then consider[s] the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard[. in determining the appropriate sentence in a particular case. . .S. such as failing to calculate (or improperly calculating) the Guidelines range .C. . Ct. . the grounds for departure provided in the policy statements. See 28 U. stating: [T]he presumption reflects the nature of the Guidelines-writing task that Congress set for the Commission and the manner in which the Commission carried out that task. tak[ing] into account the totality of the circumstances. at 2465. both in principle and in practice. at retail. in promulgating guidelines.S. The second and related theme resonant in this line of Supreme Court cases is that. . at 264 ("The district courts. 596 (2007) ("As a matter of administration and to secure nationwide consistency. but not greater than necessary. which held that a court of appeals may apply a presumption of reasonableness to a sentence imposed by a district court within a properly calculated guideline range without violating the Sixth Amendment.C. Rita. Ct.S. Consequently. Ct. 543 U. See 18 U. at 2464. The continuing importance of the guidelines in the sentencing determination is predicated in large part on the Sentencing Reform Act’s intent that. Gall v.. .S." Gall.

For example.C.S.S.S. "Congress has shown that it knows how to direct sentencing practices in express terms. Id. as we pointed out in Rita. the Department of Justice. and in consideration of data it receives from sentencing courts and other sources. 28 U. § 994(x). experts in penology. 543 U. Congress has specifically required the Sentencing Commission to set Guideline sentences for serious recidivist offenders ‘at or near’ the statutory maximum. defenders. and others. United States. 558 (2007). § 3553(a)(2) in its promulgation of the guidelines.C.C.S.Ch. civil liberties associations.S."). the Commission publishes guideline amendment proposals in the Federal Register and conducts hearings to solicit input on those proposals from experts and other members of the public. at 571. the guidelines are the product of a deliberative and dynamic process that seeks to embody within federal sentencing policy the purposes of sentencing set forth in the Sentencing Reform Act. by imposing a non-Guidelines sentence). Statutory mechanisms such as these bolster the Commission’s ability to take into account fully the purposes of sentencing set forth in 18 U. at 264 ("[T]he Sentencing Commission remains in place. § 994(o). the Bureau of Prisons. In doing so. 128 S. Congress retains authority to require certain sentencing practices and may exercise its authority through specific directives to the Commission with respect to the guidelines. and revising the Guidelines accordingly. Ct. law enforcement groups. Gall. pursuant to 28 U. the product of careful study based on extensive empirical evidence derived from the review of thousands of individual sentencing decisions. see also Booker. writing Guidelines. 2009 The Commission’s work is ongoing. The judges will set forth their reasons. at 2464. the Commission periodically reviews and revises the guidelines in consideration of comments it receives from members of the federal criminal justice system.C. defense attorneys and the federal public defenders. The Courts of Appeals will determine the reasonableness of the resulting sentence. – 14 – . And it can revise the Guidelines accordingly. As such. and reaffirmed by the Supreme Court. collecting information about actual district court sentencing decisions. As envisioned by Congress. applying the Guidelines in individual cases may depart (either pursuant to the Guidelines or. Provisions of the Sentencing Reform Act promote and facilitate this evolutionary process. 1 Pt. As the Supreme Court noted in Kimbrough v." Id. including the courts. 128 S. Pursuant to 28 U. probation officers. Ct. it may obtain advice from prosecutors. they are. § 994(h). at 594 ("[E]ven though the Guidelines are advisory rather than mandatory. the guidelines continue to be a key component of federal sentencing and to play an important role in the sentencing court’s determination of an appropriate sentence in any particular case. A GUIDELINES MANUAL November 1. undertaking research. The statutes and the Guidelines themselves foresee continuous evolution helped by the sentencing courts and courts of appeals in that process. The sentencing courts. implemented by the Commission. The Commission will collect and examine the results. For example."). since Booker.

§1A3. amendments 602 and 603). United States Code. pursuant to the authority contained in that directive in addition to the authority under section 994(a) of title 28. 1995 (see Appendix C. 1992 (see Appendix C. are promulgated by the United States Sentencing Commission pursuant to: (1) section 994(a) of title 28. AUTHORITY Authority The guidelines. A 3. policy statements. amendment 466). 2000 (see Appendix C. amendment 534). 2008 (see Appendix C. 1989 (see Appendix C. November 1. including amendments thereto. amendment 307). October 27. 1 Pt. November 1.1. 2009 GUIDELINES MANUAL Ch. amendments 67 and 68). and commentary promulgated or amended pursuant to specific congressional directive. amendment 651). 1987. United States Code. policy statements. and commentary set forth in this Guidelines Manual. November 1. 2003 (see Appendix C. November 1. and (2) with respect to guidelines. 1996 (see Appendix C. 1990 (see Appendix C. November 1.November 1. amendments 717 and 725) . Historical Note: Effective November 1. amendment 538). – 15 – . Amended effective November 1. November 1.

fines. (b) (c) (d) (e) (f) (g) (h) (i) Commentary Application Notes: 1. Determine the base offense level and apply any appropriate specific offense characteristics.§1B1. For the particular guideline range. Apply the adjustments as appropriate related to victim.GENERAL APPLICATION PRINCIPLES §1B1. repeat steps (a) through (c) for each count. role. 2009 PART B . cross references. and to any other policy statements or commentary in the guidelines that might warrant consideration in imposing sentence. Application Instructions Except as specifically directed.1. Determine the defendant’s criminal history category as specified in Part A of Chapter Four. If there are multiple counts of conviction. Refer to Parts H and K of Chapter Five. The following are definitions of terms that are used frequently in the guidelines and are of general applicability (except to the extent expressly modified in respect to a particular guideline or policy statement): – 16 – . the provisions of this manual are to be applied in the following order: (a) Determine. and special instructions contained in the particular guideline in Chapter Two in the order listed.2 (Applicable Guidelines). determine from Parts B through G of Chapter Five the sentencing requirements and options related to probation. and obstruction of justice from Parts A. Specific Offender Characteristics and Departures. Apply Part D of Chapter Three to group the various counts and adjust the offense level accordingly. imprisonment. Determine the guideline range in Part A of Chapter Five that corresponds to the offense level and criminal history category determined above.2. pursuant to §1B1. and C of Chapter Three. See §1B1. the offense guideline section from Chapter Two (Offense Conduct) applicable to the offense of conviction. supervision conditions.1 GUIDELINES MANUAL November 1. and restitution. B. Determine from Part B of Chapter Four any other applicable adjustments. Apply the adjustment as appropriate for the defendant’s acceptance of responsibility from Part E of Chapter Three.

assignment of a criminal history category other than the otherwise applicable criminal history category. regardless of whether the weapon was directly visible to that person. § 5845(f) (including an explosive. a defendant wrapped a hand in a towel during a bank robbery to create the appearance of a gun). 2009 GUIDELINES MANUAL §1B1. "Firearm" means (i) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive. "Departure" means (i) for purposes other than those specified in subdivision (ii). or (vi) device similar to any of the devices described in the preceding clauses).(i) bomb. "Depart downward" means grant a downward departure. or is of a type for which medical attention ordinarily would be sought. although the dangerous weapon does not have to be directly visible. "Downward departure" means departure that effects a sentence less than a sentence that could be imposed under the applicable guideline range or a sentence that is otherwise less than the guideline sentence. "Bodily injury" means any significant injury.November 1. or the presence of the weapon was otherwise made known to another person. "Depart" means grant a departure. (ii) grenade. (iii) rocket having a propellant charge of more than four ounces. or (ii) an object that is not an instrument capable of inflicting death or serious bodily injury but (I) closely resembles such an instrument.g. Accordingly. or poison gas . and (ii) for purposes of §4A1. an injury that is painful and obvious. "Brandished" with reference to a dangerous weapon (including a firearm) means that all or part of the weapon was displayed. "Depart upward" means grant an upward departure.. For example. the weapon must be present. (ii) the frame or receiver of any such weapon. "Dangerous weapon" means (i) an instrument capable of inflicting death or serious bodily injury. in order to effect a sentence outside the applicable guideline range. (v) mine. or (II) the defendant used the object in a manner that created the impression that the object was such an instrument (e. (iii) any firearm muffler or silencer. a bank robber’s forcing a bank teller from the bank into a getaway car would constitute an abduction.C. or (iv) any (G) – 17 – .3 (Departures Based on Inadequacy of Criminal History Category).S.1 (A) "Abducted" means that a victim was forced to accompany an offender to a different location. incendiary. in order to intimidate that person. imposition of a sentence outside the applicable guideline range or of a sentence that is otherwise different from the guideline sentence. e.g. "Upward departure" means departure that effects a sentence greater than a sentence that could be imposed under the applicable guideline range or a sentence that is otherwise greater than the guideline sentence. (B) (C) (D) (E) (F) "Destructive device" means any article described in 26 U. (iv) missile having an explosive or incendiary charge of more than one-quarter ounce.

" as the case may be. organ. 3. The term "includes" is not exhaustive. the offense level adjustments are alternative." "federal offense.g. In addition." is merely illustrative.2(b)(3).3 (Relevant Conduct) unless a different meaning is specified or is otherwise clear from the context. some statutes may be covered by more than one guideline. that uses air or carbon dioxide pressure to expel a projectile is a dangerous weapon but not a firearm.—The offense level adjustments from more than one specific offense characteristic within an offense guideline are applied cumulatively (added together) unless the guideline specifies that only the greater (or greatest) is to be used. § 2241 or § 2242 or any similar offense under state law. The term "instant" is used in connection with "offense. "Physically restrained" means the forcible restraint of the victim such as by being tied. by denial of food or medical care) would constitute lifethreatening bodily injury. the term "e. or physical rehabilitation.§1B1. to distinguish the violation for which the defendant is being sentenced from a prior or subsequent offense. or requiring medical intervention such as surgery. For example. or mental faculty. The list of "Statutory Provisions" in the Commentary to each offense guideline does not necessarily include every statute covered by that guideline. maltreatment to a lifethreatening degree (e. Within each specific offense characteristic subsection. In addition. for example.. displaying.g. organ. Such definitions are not designed for general applicability. . bound.g. loss or substantial impairment of the function of a bodily member.." or "offense of conviction. "serious bodily injury" is deemed to have occurred if the offense involved conduct constituting criminal sexual abuse under 18 U. (H) "Offense" means the offense of conviction and all relevant conduct under §1B1. an offense before a state court involving the same underlying conduct). or from an offense before another court (e.C. their applicability to sections other than those expressly referenced must be determined on a case by case basis. (A) Cumulative Application of Multiple Adjustments within One Guideline. "Permanent or life-threatening bodily injury" means injury involving a substantial risk of death.1 GUIDELINES MANUAL November 1. or locked up. Definitions of terms also may appear in other sections. however. In the case of a kidnapping. only the one that best describes the conduct is to be used. 2009 destructive device. or an obvious disfigurement that is likely to be permanent. "Serious bodily injury "means injury involving extreme physical pain or the protracted impairment of a function of a bodily member. (I) (J) (K) (L) 2.S. commonly known as a "BB" or pellet gun. or possessing a firearm or other dangerous weapon. therefore. "Otherwise used" with reference to a dangerous weapon (including a firearm) means that the conduct did not amount to the discharge of a firearm but was more than brandishing. in §2A2. pertaining to degree – 18 – 4. or mental faculty that is likely to be permanent. A weapon. hospitalization.

amendment 361). 1991 (see Appendix C. (B) Cumulative Application of Multiple Adjustments from Multiple Guidelines. amendment 661). 5. 2000 (see Appendix C. even though the enhancement and the adjustment both are triggered by the shooting of the officer. the offense conduct charged in the count of the indictment or information of which the defendant was convicted).2.. a parenthetical restatement of that other guideline’s heading accompanies the initial reference to that other guideline. Use of Abbreviated Guideline Titles. Property Destruction. amendment 651).1 (Larceny. Offenses Involving Stolen Property. 2001 (see Appendix C.2. Embezzlement. 1993 (see Appendix C. Fraud and Deceit. but the guidelines authorize the application of only one such provision. E. amendments 69-72 and 303). if a firearm is both discharged and brandished. Applicable Guidelines (a) Determine the offense guideline section in Chapter Two (Offense Conduct) applicable to the offense of conviction (i. In some cases.. enhancements under Chapter Two. amendments 591 and 601). 2003 (see Appendix C. such enhancements. 2003 (see Appendix C.1(b)(3) and an official victim adjustment under §3A1. Amended effective January 15. determine the offense guideline section in Chapter Two applicable to the stipulated offense. November 1. November 1. November 1.—Whenever a guideline makes reference to another guideline. amendment 497). October 27. amendment 617). the subdivision that best describes the level of bodily injury is used. However. and determinations may be triggered by the same conduct. November 1. 1987.2(b)(2). amendments 545 and 546). – 19 – . 2006 (see Appendix C. Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States) may be abbreviated as follows: §2B1. adjustments under Chapter Three. Forgery. 1988 (see Appendix C. use the provision that results in the greater offense level. 6. November 1. November 1. and Fraud). amendment 388). and Other Forms of Theft. For example. such a parenthetical restatement of the guideline heading may be abbreviated for ease of reference. 1990 (see Appendix C. references to §2B1. For example.2 of bodily injury.November 1. and determinations under Chapter Four are to be applied cumulatively. Historical Note: Effective November 1.—Absent an instruction to the contrary. In the case of lengthy guideline headings. November 1. November 1. Property Damage or Destruction. §1B1. This parenthetical is provided only for the convenience of the reader and is not intended to have substantive effect. November 1.e. adjustments. 1997 (see Appendix C. 2009 GUIDELINES MANUAL §1B1. the provision applicable to the discharge of the firearm would be used. shooting a police officer during the commission of a robbery may warrant an injury enhancement under §2B3.g.1 (Theft. 1989 (see Appendix C. the adjustments for different degrees of bodily injury (subdivisions (A)-(E)) are not added together. in §2A2. in the case of a plea agreement (written or made orally on the record) containing a stipulation that specifically establishes a more serious offense than the offense of conviction. Where two or more guideline provisions appear equally applicable. amendment 684). amendment 1).

See §2X5. Solicitation. or Conspiracy) as well as the guideline referenced in the Statutory Index for the substantive offense.1 (Attempt.2 GUIDELINES MANUAL November 1. refer to §2X1. the offense of conviction and the conduct proscribed by the statute will coincide. For statutory provisions not listed in the Statutory Index. (A) in the case of a plea agreement (written or made orally on the record) containing a stipulation that specifically establishes a more serious offense than the offense of conviction. or solicitation. If the offense involved a conspiracy. (b) After determining the appropriate offense guideline section pursuant to subsection (a) of this section. – 20 – . See §1B1. the most analogous guideline. See §2X5. referenced in the Statutory Index for the offense of conviction. This section provides the basic rules for determining the guidelines applicable to the offense conduct under Chapter Two (Offense Conduct). For statutory provisions not listed in the Statutory Index. Solicitation. If the offense involved a conspiracy. However. refer to §2X1.9 (Class B or C Misdemeanors and Infractions). use the most analogous guideline. and the court will determine which of the referenced guideline sections is most appropriate for the offense conduct charged in the count of which the defendant was convicted. determined pursuant to §2X5. The court is to use the Chapter Two guideline section referenced in the Statutory Index (Appendix A) for the offense of conviction.1 (Other Offenses). is to be used. A plea agreement (written or made orally on the record) containing a stipulation that specifically establishes the commission of additional offense(s) shall be treated as if the defendant had been convicted of additional count(s) charging those offense(s).§1B1. The guidelines do not apply to any count of conviction that is a Class B or C misdemeanor or an infraction.1 (Other Offenses). or solicitation. or Conspiracy) as well as the guideline referenced in the Statutory Index for the substantive offense. A conviction on a count charging a conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate count of conspiracy for each offense that the defendant conspired to commit. In the case of a particular statute that proscribes a variety of conduct that might constitute the subject of different offense guidelines. and (B) for statutory provisions not listed in the Statutory Index. determine the applicable guideline range in accordance with §1B1. attempt. the most analogous guideline is to be used. the Chapter Two offense guideline section applicable to the stipulated offense is to be used. (c) (d) Commentary Application Notes: 1. the Statutory Index may specify more than one offense guideline for that particular statute.3 (Relevant Conduct).1 (Attempt.1 (Other Offenses). attempt. In the case of a particular statute that proscribes only a single type of criminal conduct. 2009 Refer to the Statutory Index (Appendix A) to determine the Chapter Two offense guideline. and the Statutory Index will specify only one offense guideline for that offense of conviction.

However. Where there is more than one base offense level within a particular guideline. Then. As a simple example. and any other applicable sentencing factors pursuant to the relevant conduct definition in §1B1. 2009 GUIDELINES MANUAL §1B1. the determination of the applicable base offense level is treated in the same manner as a determination of a specific offense characteristic. 98-1017. artificial procedure is avoided by using the exception rule in guilty or nolo contendere plea cases where it is applicable.2(b) directs the court. the applicable guideline section from Chapter Two) under §1B1. the "relevant conduct" criteria of §1B1. 98th Cong.. is acceptable. Accordingly. 2d Sess. may not exceed the maximum sentence for theft. The sentence that shall be imposed is limited. The probation officer would first be required to calculate the guideline for the offense of conviction. an exception to this general rule is that if a plea agreement (written or made orally on the record) contains a stipulation that establishes a more serious offense than the offense of conviction. §2B1. however. A factual statement or a stipulation contained in a plea agreement (written or made orally on the record) is a stipulation for purposes of subsection (a) only if both the defendant and the government explicitly agree that the factual statement or stipulation is a stipulation for such purposes. Without this exception. For example. or after any modification to the plea agreement has been made. Section 1B1. however. unless conviction under a specific statute is expressly required. See Chapter Five. The limited exception provided here applies only after the court has determined that a plea. In a case in which the elements of an offense more serious than the offense of conviction are established by a plea agreement. Property Destruction. 2. 99 (1984). Rep. this guideline might even contain characteristics that are difficult to establish or not very important in the context of the actual offense conduct.3 are to be used. the court must first determine that the agreement is acceptable. Part D (Multiple Counts) are to be applied although there may be only one count of conviction. and Fraud) contains monetary distinctions which are more significant and more detailed than the monetary distinctions in §2B3. the robbery guideline is to be applied. The exception to the general rule has a practical basis. Subsections (c) and (d) address circumstances in which the provisions of Chapter Three. the guideline section applicable to the stipulated offense is to be used. However.1 (Theft. See H.2(a) to determine any applicable specific offense characteristics (under that guideline). Subsection (c) provides that in the case of a stipulation to the commission of additional – 21 – 3. Part B (Plea Agreements).3. once it has determined the applicable guideline (i.November 1. in accordance with the policies stated in Chapter Six.1 (Robbery). to the maximum authorized by the statute under which the defendant is convicted. it may unduly complicate the sentencing process if the applicable guideline does not reflect the seriousness of the defendant’s actual conduct. This cumbersome.e. is not a stipulation for purposes of subsection (a). the probation officer might need to calculate the robbery guideline to assist the court in determining the appropriate degree of departure in a case in which the defendant pled guilty to theft but admitted committing robbery. if the defendant pleads guilty to theft. The sentence.. a factual statement or stipulation made after the plea agreement has been entered. otherwise fitting the exception. . Part G (Implementing the Total Sentence of Imprisonment).2 As set forth in the first paragraph of this note. As with any plea agreement. the court would be forced to use an artificial guideline and then depart from it to the degree the court found necessary based upon the more serious conduct established by the plea agreement. but admits the elements of robbery as part of the plea agreement.

a conspiracy to steal three government checks) it is not necessary to engage in the foregoing analysis. however. amendment 438). Historical Note: Effective November 1. aided. endeavor. because §1B1.3. 1991 (see Appendix C.3(a)(2) governs consideration of the defendant’s conduct.2 GUIDELINES MANUAL November 1. 4. amendment 434). 1989 (see Appendix C. one count of conspiracy to commit the second robbery. all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity. whether or not charged as a conspiracy). in preparation for that offense. November 1. (B) that occurred during the commission of the offense of conviction. – 22 – . admits to having committed two additional robberies. or enterprise undertaken by the defendant in concert with others. Unless otherwise specified. 2000 (see Appendix C. counseled. For example. shall be determined on the basis of the following: (1) (A) all acts and omissions committed. the guidelines are to be applied as if the defendant had been convicted of three counts of robbery. 2009 offense(s). were it sitting as a trier of fact. where a conviction on a single count of conspiracy establishes that the defendant conspired to commit three robberies. and one count of conspiracy to commit the third robbery. November 1. the guidelines are to be applied as if the defendant had been convicted of an additional count for each of the offenses stipulated. 1988 (see Appendix C. and in the case of a jointly undertaken criminal activity (a criminal plan. Amended effective January 15. amendments 613 and 617). 2001 (see Appendix C. For example. November 1. Particular care must be taken in applying subsection (d) because there are cases in which the verdict or plea does not establish which offense(s) was the object of the conspiracy.2(d) (e. (ii) specific offense characteristics and (iii) cross references in Chapter Two. 1987. amendment 2). and (iv) adjustments in Chapter Three. subsection (d) should only be applied with respect to an object offense alleged in the conspiracy count if the court. the guidelines are to be applied as if the defendant had been convicted on one count of conspiracy to commit the first robbery. induced.g. §1B1. (i) the base offense level where the guideline specifies more than one base offense level. In such cases. as part of a plea agreement. November 1. 1992 (see Appendix C. or in the course of attempting to avoid detection or responsibility for that offense. amendment 591). would convict the defendant of conspiring to commit that object offense. if the defendant is convicted of one count of robbery but. Note. Subsection (d) provides that a conviction on a conspiracy count charging conspiracy to commit more than one offense is treated as if the defendant had been convicted of a separate conspiracy count for each offense that he conspired to commit. procured. scheme. commanded.§1B1. if the object offenses specified in the conspiracy count would be grouped together under §3D1. November 1. Relevant Conduct (Factors that Determine the Guideline Range) (a) Chapters Two (Offense Conduct) and Three (Adjustments). or willfully caused by the defendant. abetted. amendments 73-75 and 303)..

or conspirator. Factors in Chapters Four and Five that establish the guideline range shall be determined on the basis of the conduct and information specified in the respective guidelines. all harm that resulted from the acts and omissions specified in subsections (a)(1) and (a)(2) above. the focus is on the specific acts and omissions for which the defendant is to be held accountable in determining the applicable guideline range. accomplice. Under subsections (a)(1) and (a)(2). Commentary Application Notes: 1.e. subsection (a)(1)(B) provides that a defendant is accountable for the conduct (acts and omissions) of others that was both: (i) (ii) in furtherance of the jointly undertaken criminal activity.November 1. rather than on whether the defendant is criminally liable for an offense as a principal. or enterprise undertaken by the defendant in concert with others. In order to determine the defendant’s accountability for the conduct of others under subsection (a)(1)(B). whether or not charged as a conspiracy. 2009 GUIDELINES MANUAL §1B1. the court must first determine the scope of the criminal activity the particular defendant agreed to jointly undertake (i. scheme. (3) (4) (b) Chapters Four (Criminal History and Criminal Livelihood) and Five (Determining the Sentence). The conduct of others that was not in – 23 – . In the case of a jointly undertaken criminal activity.3 (2) solely with respect to offenses of a character for which §3D1. A "jointly undertaken criminal activity" is a criminal plan. 2. and hence relevant conduct is not necessarily the same for every participant.. and any other information specified in the applicable guideline. and reasonably foreseeable in connection with.2(d) would require grouping of multiple counts. endeavor. the scope of the criminal activity jointly undertaken by the defendant (the "jointly undertaken criminal activity") is not necessarily the same as the scope of the entire conspiracy. and reasonably foreseeable in connection with that criminal activity. all acts and omissions described in subdivisions (1)(A) and (1)(B) above that were part of the same course of conduct or common scheme or plan as the offense of conviction. The principles and limits of sentencing accountability under this guideline are not always the same as the principles and limits of criminal liability. Because a count may be worded broadly and include the conduct of many participants over a period of time. the criminal activity jointly undertaken by the defendant is relevant conduct under this provision. the scope of the specific conduct and objectives embraced by the defendant’s agreement). and all harm that was the object of such acts and omissions. The conduct of others that was both in furtherance of.

the scope of the specific conduct and objectives embraced by the defendant’s agreement).g. or was not reasonably foreseeable in connection with that criminal activity. the cocaine sold prior to the defendant joining the conspiracy is not included as relevant conduct in determining the defendant’s offense level). counsels. The off-loading of the ship is interrupted by law enforcement officers and one ton of marihuana is seized (the amount on the ship as well as the amount off-loaded). the defendant is accountable for all quantities of contraband with which he was directly involved and. in such a case. or willfully causes. the court may consider any explicit agreement or implicit agreement fairly inferred from the conduct of the defendant and others.. are not necessarily identical. 2009 furtherance of the criminal activity jointly undertaken by the defendant.. two defendants agree to commit a robbery and. With respect to offenses involving contraband (including controlled substances). Defendant A is accountable for the entire oneton quantity of marihuana. A defendant’s relevant conduct does not include the conduct of members of a conspiracy prior to the defendant joining the conspiracy. in the case of a jointly undertaken criminal activity. Defendant A and the other off-loaders are arrested and convicted of importation of marihuana.. induces. abets. It does not apply to conduct that the defendant personally undertakes. acts and omissions) of others under subsection (a)(1)(B).e. The Commission does not foreclose the possibility that there may be some unusual set of circumstances in which the exclusion of such conduct may not adequately reflect the defendant’s culpability. all reasonably foreseeable quantities of contraband that were within the scope of the criminal activity that he jointly undertook. The requirement of reasonable foreseeability applies only in respect to the conduct (i. even if the defendant knows of that conduct (e.e. commands. in the case of a defendant who joins an ongoing drug distribution conspiracy knowing that it had been selling two kilograms of cocaine per week.3 GUIDELINES MANUAL November 1.§1B1. For example. procures. the first defendant assaults and injures a victim. Note that the criminal activity that the defendant agreed to jointly undertake. and the reasonably foreseeable conduct of others in furtherance of that criminal activity. In determining the scope of the criminal activity that the particular defendant agreed to jointly undertake (i. is not relevant conduct under this provision. aids. Illustrations of Conduct for Which the Defendant is Accountable (a) Acts and omissions aided or abetted by the defendant (1) Defendant A is one of ten persons hired by Defendant B to off-load a ship containing marihuana. during the course of that robbery. an upward departure may be warranted. Defendant A aided and abetted the off-loading of the – 24 – . Regardless of the number of bales he personally unloaded. such conduct is addressed under subsection (a)(1)(A). The second defendant is accountable for the assault and injury to the victim (even if the second defendant had not agreed to the assault and had cautioned the first defendant to be careful not to hurt anyone) because the assaultive conduct was in furtherance of the jointly undertaken criminal activity (the robbery) and was reasonably foreseeable in connection with that criminal activity (given the nature of the offense).

it is not necessary to review alternative provisions under which such accountability might be established. As noted earlier. A finding that the one-ton quantity of marihuana was reasonably foreseeable is warranted from the nature of the undertaking itself (the importation of marihuana by ship typically involves very large quantities of marihuana). of course. the specific objective of the criminal activity he joined was the offloading of the entire shipment). As noted in the preceding paragraph. requirement that the conduct of others be in furtherance of the jointly undertaken criminal activity and reasonably foreseeable (1) Defendant C is the getaway driver in an armed bank robbery in which $15. therefore. Defendant A also is accountable for the entire one-ton shipment of marihuana on the basis of subsection (a)(1)(B)(applying to a jointly undertaken criminal activity).November 1. Defendant A engaged in a jointly undertaken criminal activity (the scope of which was the importation of the shipment of marihuana). 2009 GUIDELINES MANUAL §1B1. if a defendant’s accountability for particular conduct is established under one provision of this guideline. In this example. the taking of money was the specific objective of the jointly undertaken criminal activity).e. he is accountable for the entire shipment under subsection (a)(1)(A) without regard to the issue of reasonable foreseeability. is accountable for the controlled substance in the suitcase regardless of his knowledge or lack of knowledge of the actual type or amount of that controlled substance.000 is taken and a teller is assaulted and injured. Defendant A is accountable for the entire one-ton shipment of marihuana under subsection (a)(1)(A). (b) Acts and omissions aided or abetted by the defendant. The specific circumstances of the case (the defendant was one of ten persons off-loading the marihuana in bales) also support this finding. a defendant may be accountable for particular conduct under more than one subsection.. Defendant C also is accountable for the money taken on the basis of subsection (a)(1)(B) because the taking of money was in furtherance of the jointly undertaken criminal activity (the robbery) and was reasonably foreseeable (as noted. In an actual case. a defendant may be accountable for particular conduct under more than one subsection of this guideline. Defendant C is accountable for the money taken under subsection (a)(1)(A) because he aided and abetted the act of taking the money (the taking of money was the specific objective of the offense he joined). – 25 – . This is conceptually similar to the case of a defendant who transports a suitcase knowing that it contains a controlled substance and. Defendant C is accountable for the injury to the teller under subsection (a)(1)(B) because the assault on the teller was in furtherance of the jointly undertaken criminal activity (the robbery) and was reasonably foreseeable in connection with that criminal activity (given the nature of the offense). In certain cases. Therefore.3 entire shipment of marihuana by directly participating in the off-loading of that shipment (i.

Defendant E is convicted of forging the $800 check and is accountable for the forgery of this check under subsection (a)(1)(A). Each is convicted of mail fraud.e. Defendant L is accountable under subsection (a)(1)(A) only for the quantity of – 26 – (2) (3) (4) . Defendant L is a retail-level dealer who purchases child pornography from Defendant K and resells it. Defendant E is not accountable for the $15.000). Similarly.000 because the fraudulent scheme to obtain $15. Unknown to Defendant E. the forgery of the $800 check). Defendant F fraudulently obtains $20. Each defendant is accountable for the amount he personally obtained under subsection (a)(1)(A). Defendants F and G. I. Defendant M is a retail-level dealer who purchases child pornography from Defendant K and resells it. Defendant D then uses that check as a down payment in a scheme to fraudulently obtain $15. Each defendant is accountable for the amount obtained by his accomplice under subsection (a)(1)(B) because the conduct of each was in furtherance of the jointly undertaken criminal activity and was reasonably foreseeable in connection with that criminal activity. Defendant G fraudulently obtains $35. and J are included in a single count charging conspiracy to import marihuana. but otherwise operates independently of Defendant K. Defendant J is accountable for the entire single shipment of marihuana he helped import under subsection (a)(1)(A) and any acts and omissions in furtherance of the importation of that shipment that were reasonably foreseeable (see the discussion in example (a)(1) above). Defendants H. He is not accountable for prior or subsequent shipments of marihuana imported by Defendants H or I because those acts were not in furtherance of his jointly undertaken criminal activity (the importation of the single shipment of marihuana). 2009 Requirement that the conduct of others be in furtherance of the jointly undertaken criminal activity and reasonably foreseeable. Defendant K is accountable under subsection (a)(1)(A) for the entire quantity of child pornography sold to Defendants L and M. Defendant N also is accountable for the entire quantity sold to those defendants under subsection (a)(1)(B) because the entire quantity was within the scope of his jointly undertaken criminal activity and reasonably foreseeable. design and execute a scheme to sell fraudulent stocks by telephone. working together. Defendants L and M are aware of each other’s criminal activity but operate independently. Defendants H and I engaged in an ongoing marihuana importation conspiracy in which Defendant J was hired only to help off-load a single shipment.000 was not in furtherance of the criminal activity he jointly undertook with Defendant D (i.§1B1. but otherwise operates independently of Defendant K. Defendant N is Defendant K’s assistant who recruits customers for Defendant K and frequently supervises the deliveries to Defendant K’s customers. scope of the criminal activity (1) Defendant D pays Defendant E a small amount to forge an endorsement on an $800 stolen government check. Defendants F and G each are accountable for the entire amount ($55.000 worth of merchandise.. Each defendant is convicted of a count charging conspiracy to distribute child pornography.3 (c) GUIDELINES MANUAL November 1.000. Defendant K is a wholesale distributor of child pornography.000.

if Defendants T. each defendant would be accountable only for the quantity of marihuana he personally transported (subsection (a)(1)(A)). The four defendants engaged in a jointly undertaken criminal activity. As this example illustrates. U. Defendant Q. Defendants T. rather than the much larger quantity imported by Defendant R. therefore. Defendant O is accountable under subsection (a)(1)(A) for the drug quantity involved on that one occasion. but agrees to participate on only one occasion by making a delivery for him at his request when he was ill. U. Defendant S is accountable only for that 500 gram amount (under subsection (a)(1)(A)). but otherwise operate independently.3 child pornography that he purchased from Defendant K because the scope of his jointly undertaken criminal activity is limited to that amount. 2009 GUIDELINES MANUAL §1B1. he is accountable under subsection (a)(1)(B) for the quantities of drugs sold by the four other dealers during the course of his joint undertaking with them because those sales were in furtherance of the jointly undertaken criminal activity and reasonably foreseeable in connection with that criminal activity. pools his resources and profits with four other street-level drug dealers. Defendant P is not accountable for the quantities of drugs sold by the other street-level drug dealers because he is not engaged in a jointly undertaken criminal activity with them. U. and otherwise operated independently. and W were hired individually. V. Defendant P is a street-level drug dealer who knows of other street-level drug dealers in the same geographic area who sell the same type of drug as he sells. the scope of the – 27 – (6) (7) (8) . As long as Defendant S’s agreement and conduct is limited to the distribution of the 500 grams. (5) Defendant O knows about her boyfriend’s ongoing drug-trafficking activity. V. In contrast. Defendant O is not accountable for the other drug sales made by her boyfriend because those sales were not in furtherance of her jointly undertaken criminal activity (i. Defendant R recruits Defendant S to distribute 500 grams of cocaine. Defendant Q is engaged in a jointly undertaken criminal activity and. V. For the same reason. in cases involving contraband (including controlled substances). transported their individual shipments at different times. the object of which was the importation of the four backpacks containing marihuana (subsection (a)(1)(B)). and W are hired by a supplier to backpack a quantity of marihuana across the border from Mexico into the United States.e. In contrast. Each defendant is accountable for the aggregate quantity of marihuana transported by the four defendants. the one delivery). Defendants T. and aided and abetted each other’s actions (subsection (a)(1)(A)) in carrying out the jointly undertaken criminal activity. Defendant M is accountable under subsection (a)(1)(A) only for the quantity of child pornography that he purchased from Defendant K.. another street-level drug dealer. Defendant S knows that Defendant R is the prime figure in a conspiracy involved in importing much larger quantities of cocaine. Defendant P and the other dealers share a common source of supply.November 1. and W receive their individual shipments from the supplier at the same time and coordinate their importation efforts by walking across the border together for mutual assistance and protection.

and 20 grams of cocaine.2 (Aggravated Assault). §2Q1.0 (Grounds for Departure). attempts to sell an additional 15 grams of cocaine (a violation of 21 U. Solicitation. "Offenses of a character for which §3D1.2(d). the nature of the offense is more appropriately viewed as one jointly undertaken criminal activity or as a number of separate criminal activities. had the defendant been convicted of multiple counts.g.3 GUIDELINES MANUAL November 1. attempted or intended harm (e. Therefore. For example. – 28 – . As noted above. property damage and any resulting harm.. §2B1. as part of the same course of conduct or common scheme or plan. Property Destruction. If. multiple counts of conviction are not required for subsection (a)(2) to apply. and Fraud). Solicitation. §2K1. In a case in which creation of risk is not adequately taken into account by the applicable offense guideline. The two offenses (sale of cocaine and attempted sale of cocaine).. the guideline refers only to harm sustained (e. 15. subsection (a)(2) applies and the total amount of cocaine (45 grams) involved is used to determine the offense level. subsection (a)(2) provides that the total quantity of cocaine involved (45 grams) is to be used to determine the offense level even if the defendant is convicted of a single count charging only one of the sales.2(d) would require the grouping of counts. The extent to which harm that was attempted or intended enters into the determination of the offense level should be determined in accordance with §2X1.1 (Robbery)) or to actual. Part D (Multiple Counts) provide that the counts are grouped together. §5K2. subsection (a)(2) applies to offenses of a character for which §3D1.S. e. as part of the same course of conduct or common scheme or plan.S. it does not limit the scope of subsection (a)(2). Unless clearly indicated by the guidelines. or Conspiracy)).4 (Information to be Used in Imposing Sentence).1 (Attempt. Application of this provision does not require the defendant. Subsection (a)(2) merely incorporates by reference the types of offenses set forth in §3D1. however..§1B1. applies to offenses for which grouping of counts would be required under §3D1. Part D (Multiple Counts) applies to multiple counts of conviction. Property Damage by Use of Explosives). §2A2. in fact. 3.2(d) would require grouping of multiple counts. as discussed above. §2X1. 4. § 846) on another occasion. the risk created enters into the determination of the offense level only insofar as it is incorporated into the base offense level. to have been convicted of multiple counts.1 (Attempt. If the defendant is convicted of multiple counts for the above noted sales. where the defendant engaged in three drug sales of 10." as used in subsection (a)(2).g. For example.2(d) had the defendant been convicted of multiple counts.2(d) would require grouping of multiple counts. See generally §1B1. the grouping rules of Chapter Three. although covered by different statutory provisions. § 841) on one occasion and. §2B3. the defendant sells 30 grams of cocaine (a violation of 21 U.1 (Theft. 5. Although Chapter Three.C. whether that risk or danger was created is to be considered in determining the offense level. The defendant is convicted of one count charging the completed sale of 30 grams of cocaine. in the particular circumstances. an upward departure may be warranted. "Harm" includes bodily injury.g.C.4 (Arson. harm that is merely risked is not to be treated as the equivalent of harm that occurred. If the offense guideline includes creating a risk or danger of harm as a specific offense characteristic. 2009 jointly undertaken criminal activity (and thus the accountability of the defendant for the contraband that was the object of that jointly undertaken activity) may depend upon whether. See. had the defendant been convicted of both counts. monetary loss.2 (Mishandling of Hazardous or Toxic Substances or Pesticides). or Conspiracy) and the applicable offense guideline. are of a character for which §3D1. thus.

accessory after the fact. conviction under the statute is not required. In this example. using the same accomplices and modus operandi. Examples: (1) The defendant was convicted for the sale of cocaine and sentenced to state prison. See Application Note 4 in the Commentary to §2X1. attempt. in §2S1. 7.1(b)(2)(B) (which is applicable only if the defendant is convicted under 18 U. or conspiracy). In the case of a partially completed offense (e. see §4A1. or both.C.S. subsection (b)(2)(B) applies if the defendant "is convicted under 18 U. that Application Note 4 is not applicable where the offense level is determined under §2X1. not as part of the same course of conduct or common scheme or plan as the offense of conviction. Therefore. § 2242"). offense conduct associated with a sentence that was imposed prior to the acts or omissions constituting the instant federal offense (the offense of conviction) is not considered as part of the same course of conduct or common scheme or plan as the offense of conviction. See Application Note 3(C) of §2S1.4(a)(2) ("if the offense was committed by the means set forth in 18 U.S.3 6. an express direction to apply a particular factor only if the defendant was convicted of a particular statute includes the determination of the offense level where the defendant was convicted of conspiracy. The prior state prison sentence is counted under Chapter Four (Criminal History and Criminal Livelihood). (2) The defendant engaged in two cocaine sales constituting part of the same course of conduct or common scheme or plan. Unless otherwise specified.C. he is then convicted in federal court for the second sale.000). For example.1. An example of this usage is found in §2A3. For the purposes of subsection (a)(2).S.November 1. however. Immediately upon release from prison. use of a statutory reference to describe a particular set of circumstances does not require a conviction under the referenced statute.g. Solicitation.1 (Laundering of Monetary Instruments. the offense conduct relevant to the state prison sentence is considered as prior criminal history. § 1957.000 and a completed theft of $30.C. aiding or abetting. solicitation. he again sold cocaine to the same person.2(a)(1). Engaging in Monetary Transactions in Property Derived from Unlawful Activity). solicitation.1(c)(1).1 (Attempt.S. § 1956) would be applied in determining the offense level under §2X3. he is arrested by state authorities for the first sale and by federal authorities for the second sale. He is convicted in state court for the first sale and sentenced to imprisonment. 2009 GUIDELINES MANUAL §1B1. For example.C.1 (Accessory After the Fact) in a case in which the defendant was convicted of accessory after the fact to a violation of 18 U. The state prison sentence for that sale is not counted as a prior sentence. § 1956".. Unless such an express direction is included. A particular guideline (in the base offense level or in a specific offense characteristic) may expressly direct that a particular factor be applied only if the defendant was convicted of a particular statute. §2S1.C. Subsequently. 8.S.1. under subsection (a)(2). the inchoate offense (attempt. or misprision of felony in respect to that particular statute. the cocaine sales are not separated by an intervening sentence. – 29 – .S. an offense involving an attempted theft of $800. In this case. § 1956(h) and the sole object of that conspiracy was to commit an offense set forth in 18 U. § 1956 but would not be applied in a case in which the defendant is convicted of a conspiracy under 18 U. the offense level is to be determined in accordance with §2X1. the cocaine sale associated with the state conviction is considered as relevant conduct to the instant federal offense. The instant federal offense (the offense of conviction) charges this latter sale.C. Note. or Conspiracy) whether the conviction is for the substantive offense. Thus.

spree. i. or similarity of modus operandi (the same or similar computer manipulations were used to execute the scheme).4 (Information to be Used in Imposing Sentence) governs the range of information that the court may consider in adjudging sentence once the guideline sentencing range has been determined. they must be substantially connected to each other by at least one common factor. or similar modus operandi. such as common victims. "Common scheme or plan" and "same course of conduct" are two closely related concepts. common accomplices. by the defendant.§1B1. commonality of purpose (to defraud the group of investors). a defendant’s failure to file tax returns in three consecutive years appropriately would be considered as part of the same course of conduct because such returns are only required at yearly intervals). the conduct of five defendants who together defrauded a group of investors by computer manipulations that unlawfully transferred funds over an eighteen-month period would qualify as a common scheme or plan on the basis of any of the above listed factors. Background: This section prescribes rules for determining the applicable guideline sentencing range. in certain cases. Subsection (a) establishes a rule of construction by specifying. In the case of solicitation.3 GUIDELINES MANUAL November 1.. Same course of conduct. the conduct for which the defendant is accountable includes all conduct relevant to determining the offense level for the underlying offense that was known. not (a)(2). 9. (B) 10. a stronger presence of at least one of the other factors is required. The nature of the offenses may also be a relevant consideration (e. such conduct will be considered relevant conduct under subsection (a)(1). Factors that are appropriate to the determination of whether offenses are sufficiently connected or related to each other to be considered as part of the same course of conduct include the degree of similarity of the offenses. where the conduct alleged to be relevant is relatively remote to the offense of conviction. offense conduct associated with a previously imposed sentence may be expressly charged in the offense of conviction. For example. 2009 Note. For two or more offenses to constitute part of a common scheme or plan. or accessory after the fact. When one of the above factors is absent. the range of conduct that is relevant to determining the applicable offense level (except for the determination of the applicable offense guideline. commonality of offenders (the conduct constituted an ongoing conspiracy). Conduct that is not formally charged or is not an element of the offense of conviction may enter into the determination of the applicable guideline sentencing range. misprision. which – 30 – . however. Offenses that do not qualify as part of a common scheme or plan may nonetheless qualify as part of the same course of conduct if they are sufficiently connected or related to each other as to warrant the conclusion that they are part of a single episode. in the absence of more explicit instructions in the context of a specific guideline. The range of information that may be considered at sentencing is broader than the range of information upon which the applicable sentencing range is determined. the commonality of victims (the same investors were defrauded on an ongoing basis). whereas §1B1. (A) Common scheme or plan. or ongoing series of offenses.. For example. and the time interval between the offenses. the regularity (repetitions) of the offenses.e. or reasonably should have been known.g. a stronger showing of similarity or regularity is necessary to compensate for the absence of temporal proximity. common purpose. Unless otherwise provided.

Thus. 2009 GUIDELINES MANUAL §1B1. Continuing offenses present similar practical problems. §2K1. embezzled funds that may not be specified in any count of conviction are nonetheless included in determining the offense level if they were part of the same course of conduct or part of the same scheme or plan as the count of conviction. 1987. (This is true whether the defendant is convicted of one or both robberies.) Subsections (a)(1) and (a)(2) adopt different rules because offenses of the character dealt with in subsection (a)(2) (i. Conversely. 2004 (see Appendix C. each taking may provide a basis for a separate count. the applicability of subsection (a)(2) does not depend upon whether multiple counts are alleged.e. Subsection (a)(4) requires consideration of any other information specified in the applicable guideline. 1989 (see Appendix C. which provides for grouping of multiple counts arising out of a continuing offense when the offense guideline takes the continuing nature into account. amendment 439).. to which §3D1. the guidelines prohibit aggregation of quantities from other counts in order to prevent "double counting" of the conduct and harm from each count of conviction. it is important to take into account the full range of related conduct. 1992 (see Appendix C. November 1. in a robbery case in which the defendant robbed two banks. November 1.November 1. fraud and drug offenses for which the guidelines depend substantially on quantity. which provides for grouping together (i. for example.e. November 1.4 (Involuntary Manslaughter) specifies consideration of the defendant’s state of mind. Similarly. primarily certain property. November 1.2(d). when §3D1.2(d). amendment 309). The distinction is made on the basis of §3D1. 1990 (see Appendix C. Another consideration is that in a pattern of small thefts. identifiable units that are meaningful for purposes of sentencing. amendments 617 and 634). Amended effective January 15. Thus. Property Damage By Use of Explosives) specifies consideration of the risk of harm created. appears to be the most reasonable approach to writing workable guidelines for these offenses. amendment 3). the scheme is an element of the offense and each mailing may be the basis for a separate count.. 2001 (see Appendix C. in an embezzlement case. amendments 76-78 and 303). §2A1. November 1. 1994 (see Appendix C. 1988 (see Appendix C. the amount of money taken in one robbery would not be taken into account in determining the guideline range for the other robbery.2(d) does not apply. However. Subsection (a)(2) provides for consideration of a broader range of conduct with respect to one class of offenses. treating as a single count) all counts charging offenses of a type covered by this subsection. robbery and burglary. regardless of the number of counts that are alleged or on which a conviction is obtained. so that convictions on multiple counts are considered separately in determining the guideline sentencing range. The reference to §3D1. In addition. in a drug distribution case. even if both robberies were part of a single course of conduct or the same scheme or plan. amendment 389). No such rule of construction is necessary with respect to Chapters Four and Five because the guidelines in those Chapters are explicit as to the specific factors to be considered. For example. tax.2(d) applies) often involve a pattern of misconduct that cannot readily be broken into discrete. quantities and types of drugs not specified in the count of conviction are to be included in determining the offense level if they were part of the same course of conduct or part of a common scheme or plan as the count of conviction. than with respect to other offenses such as assault. 1991 (see Appendix C. Relying on the entire range of conduct. amendment 674). in an embezzlement case. the distinctions that the law makes as to what constitutes separate counts or offenses often turn on technical elements that are not especially meaningful for purposes of sentencing.4 (Arson. On the other hand. amendment 503).3 is governed by §1B1. November 1. in a mail fraud case.2(a)). even though the overall conduct is clear. also prevents double counting. For example. a pattern of embezzlement may consist of several acts of taking that cannot separately be identified. for example. Historical Note: Effective November 1. – 31 – . November 1.

amendment 604 ). and special instructions). 1987. or should be considered only for limited purposes. The recodification of this 1970 statute in 1984 with an effective date of 1987 (99 Stat. 1989 (see Appendix C. cross references. which recodifies 18 U.3) and information that a court may consider in imposing sentence within that range. GUIDELINES MANUAL November 1. the base offense level. Historical Note: Effective November 1.S. amendment 4). cross references. the court may consider.. makes it clear that Congress intended that no limitation would be placed on the information that a court may consider in imposing an appropriate sentence under the future guideline sentencing system. the adjustments in Chapter Three (Adjustments) – 32 – . An instruction to use a particular subsection or table from another offense guideline refers only to the particular subsection or table referenced. November 1. but as part of a plea negotiation entered a guilty plea to only one. character and conduct of the defendant. § 3661. the base offense level. unless otherwise prohibited by law.§1B1. Chapter Five. specific offense characteristics. express a Commission policy that certain factors should not be considered for any purpose. and special instructions). amendment 303). Amended effective January 15. or whether a departure from the guidelines is warranted. 2000 (see Appendix C. November 1. Commentary Background: This section distinguishes between factors that determine the applicable guideline sentencing range (§1B1. § 3661. 1728). § 3577.4 §1B1. except as provided in subdivision (2) below. See 18 U. Interpretation of References to Other Offense Guidelines (a) A cross reference (an instruction to apply another offense guideline) refers to the entire offense guideline (i.4.g.C. Part H (Specific Offender Characteristics). any information concerning the background. (1) An instruction to use the offense level from another offense guideline refers to the offense level from the entire offense guideline (i. Some policy statements do.S. November 1.e. 2004 (see Appendix C. The section is based on 18 U. if the defendant committed two robberies. See. specific offense characteristics. however.C. A court is not precluded from considering information that the guidelines do not take into account in determining a sentence within the guideline range or from considering that information in determining whether and to what extent to depart from the guidelines. 2009 Information to be Used in Imposing Sentence (Selecting a Point Within the Guideline Range or Departing from the Guidelines) In determining the sentence to impose within the guideline range..e. (b) (2) (c) If the offense level is determined by a reference to another guideline under subsection (a) or (b)(1) above.S.5.C. and not to the entire offense guideline. amendment 674) . §1B1. without limitation. e. the robbery that was not taken into account by the guidelines would provide a reason for sentencing at the top of the guideline range and may provide a reason for an upward departure. 1988 (see Appendix C. For example..

if the conduct involved another offense. such other offense includes conduct that may be a state or local offense and conduct that occurred under circumstances that would constitute a federal offense had the conduct taken place within the territorial or maritime jurisdiction of the United States. A reference may also be to a specific subsection of another guideline.. or may be more general (e. Fraud Involving the Deprivation of the Intangible Right to Honest Services of Public Officials. 2.g. cross references.. or Receiving a Bribe.2 (Aggravated Assault). Commentary Application Notes: 1. Extortion Under Color of Official Right. e.g. to the guideline for the "underlying offense").2 (Interstate or Foreign Travel or Transportation in Aid of a Racketeering Enterprise). For situations in which a comparison involving both Chapters Two and Three is necessary. if the guideline reads "2 plus the offense level from §2A2.1 (Offering. the greater offense level means the greater Chapter Two offense level. Consistent with the provisions of §1B1.1 (Unlawful Receipt. Conspiracy to Defraud by Interference with Governmental Functions). (d) A reference to another guideline under subsection (a) or (b)(1) above may direct that it be applied only if it results in the greater offense level. Where there is more than one such other offense. except as otherwise expressly provided. and special instructions as well as the base offense level. is found to have possessed that – 33 – 3. In such case. degree of injury and motive. §2D1. Giving.2(d)) is to be used. .2.1 (Unlawful Conduct Relating to Racketeer Influenced and Corrupt Organizations). and then increase by 2 levels. only the specific subsection of that other guideline is used.g. weapon use.2(a)(1) and (2)).5 also are determined in respect to the referenced offense guideline. the reference in §2D1. A reference may direct that.1(b)(7)). In such cases.. For example. see the Commentary to §§2C1. A reference to another guideline may direct that such reference is to be used only if it results in a greater offense level. and 2E1.November 1. These references may be to a specific guideline. unless the offense guideline expressly provides for consideration of both the Chapter Two offense level and applicable Chapter Three adjustments. to which §2K2. if a defendant convicted of possession of a firearm by a felon. Possession. 2009 GUIDELINES MANUAL §1B1. For example. §2A4.g. or "Specific Offense Characteristics" (e.1". Prohibited Transactions Involving Firearms or Ammunition) applies. References to other offense guidelines are most frequently designated "Cross References.3 (Relevant Conduct).10(a)(1) to "3 plus the offense level from the Drug Quantity Table in §2D1. the most serious such offense (or group of closely related offenses in the case of offenses that would be grouped together under §3D1. including any applicable adjustments for planning. In such case. except as otherwise expressly provided. Soliciting.. the greater offense level means the offense level taking into account only the Chapter Two offense level. or Transportation of Firearms or Ammunition. 2E1." but may also appear in the portion of the guideline entitled "Base Offense Level" (e. Such references incorporate the specific offense characteristics." the user would determine the offense level from §2A2. the offense guideline for such other offense is to be applied.

5 GUIDELINES MANUAL November 1. amendment 547). November 1. 1989 (see Appendix C. and the final number is the guideline. Or. To illustrate: Historical Note: Effective November 1. for example.6. The parts are divided into subparts and individual guidelines. and 302). in the view of the Commission. The first number is the chapter. Policy statements are similarly identified. may warrant departure from the guidelines. November 1. the second number is the subpart. 1987. §1B1. 1995 (see Appendix C. 1997 (see Appendix C. Each guideline is identified by three numbers and a letter corresponding to the chapter.§1B1. 1991 (see Appendix C. amendment 666). 2004 (see Appendix C. 2009 firearm during commission of a series of offenses. the cross reference at §2K2.1.C. the commentary may provide background – 34 – . Such commentary is to be treated as the legal equivalent of a policy statement. § 3742. Failure to follow such commentary could constitute an incorrect application of the guidelines. First. amendment 440). 2001 (see Appendix C. November 1. §1B1. subjecting the sentence to possible reversal on appeal.7. November 1. Second. §3A1. the commentary may suggest circumstances which. 1987. it may interpret the guideline or explain how it is to be applied. 1992 (see Appendix C. is the first guideline in the first subpart in Part B of Chapter Two. November 1. the letter represents the part of the chapter. Structure of the Guidelines The guidelines are presented in numbered chapters divided into alphabetical parts. November 1.2 is the second guideline in the first subpart in Part A of Chapter Three. Historical Note: Effective November 1. amendment 429). Section 2B1. Significance of Commentary The Commentary that accompanies the guideline sections may serve a number of purposes.1(c) is applied to the offense resulting in the greatest offense level. 80. See 18 U. part. Amended effective November 1. amendment 616). Finally. subpart and individual guideline.S. amendment 534). amendments 79.

and as part of that cooperation agreement the government agrees that self-incriminating information provided pursuant to the agreement will not be used against the defendant. United States." Stinson v. concerning the existence of prior convictions and sentences in determining §4A1. "[C]ommentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute. Use of Certain Information (a) Where a defendant agrees to cooperate with the government by providing information concerning unlawful activities of others. including factors considered in promulgating the guideline or reasons underlying promulgation of the guideline. 508 U. (b) (2) (3) (4) (5) – 35 – . 38 (1993). then such information shall not be used in determining the applicable guideline range. 2009 GUIDELINES MANUAL §1B1. in a prosecution for perjury or giving a false statement. or a plainly erroneous reading of. in the event there is a breach of the cooperation agreement by the defendant. Historical Note: Effective November 1. or to what extent.8. except to the extent provided in the agreement. These are to be construed as commentary and thus have the force of policy statements. 36. or in determining whether. or is inconsistent with.1 (Substantial Assistance to Authorities).S. The provisions of subsection (a) shall not be applied to restrict the use of information: (1) known to the government prior to entering into the cooperation agreement. 1987.1 (Career Offender).November 1. §1B1.8 information. 1993 (see Appendix C. Commentary Portions of this document not labeled as guidelines or commentary also express the policy of the Commission or provide guidance as to the interpretation and application of the guidelines. that guideline. Amended effective November 1.1 (Criminal History Category) and §4B1. such commentary may provide guidance in assessing the reasonableness of any departure from the guidelines. a downward departure from the guidelines is warranted pursuant to a government motion under §5K1. amendment 498). As with a policy statement.

2009 Commentary Application Notes: 1. provides such information to the probation officer preparing the presentence report. a downward departure is warranted pursuant to a government motion under §5K1. – 36 – . except to the extent provided in the agreement.C.1 (Criminal History Category) and §4B1. and to what extent. In the event no agreement is reached. if a defendant is arrested in possession of a kilogram of cocaine and. is that information prohibited from being used to determine the applicable guideline range shall not be used to depart upward. e. § 6002. admits that he assisted in the importation of an additional three kilograms of cocaine. Under this provision. This guideline limits the use of certain incriminating information furnished by a defendant in the context of a defendant-government agreement for the defendant to provide information concerning the unlawful activities of other persons.g. 2. Although the guideline itself affects only the determination of the guideline range. As with the statutory provisions governing use immunity..§1B1. for example. Subsection (b)(2) prohibits any cooperation agreement from restricting the use of information as to the existence of prior convictions and sentences in determining adjustments under §4A1. subsequent to having entered into a cooperation agreement. Plea Discussions. the use of such information remains protected by this section). 4. 3.1 (Substantial Assistance to Authorities). In contrast. and Related Statements) of the Federal Rules of Criminal Procedure and Rule 410 (Inadmissibility of Pleas. the policy of the Commission.g. this guideline does not apply to information used against the defendant in a prosecution for perjury. or in the event the defendant otherwise fails to comply with the cooperation agreement.S. The Probation Service generally will secure information relevant to the defendant’s criminal history independent of information the defendant provides as part of his cooperation agreement. The guideline operates as a limitation on the use of such incriminating information in determining the applicable guideline range. Plea Discussions.. On occasion the defendant will provide incriminating information to the government during plea negotiation sessions before a cooperation agreement has been reached. as a corollary.8 GUIDELINES MANUAL November 1. and Related Statements) of the Rules of Evidence. a fact not previously known to the government. where the defendant. 5. and not merely as a restriction of the government’s presentation of such information (e. use of such information in a sentencing proceeding is restricted by Rule 11(f) (Admissibility or Inadmissibility of a Plea. 18 U. this admission would not be used to increase his applicable guideline range.1 (Career Offender). pursuant to an agreement to provide information concerning the unlawful activities of co-conspirators. a court may refuse to depart downward on the basis of such information. subsection (b)(5) provides that consideration of such information is appropriate in determining whether. giving a false statement. This provision does not authorize the government to withhold information from the court but provides that self-incriminating information obtained under a cooperation agreement is not to be used to determine the defendant’s guideline range.

amendment 81). Historical Note: Effective June 15. A Class B misdemeanor is any offense for which the maximum authorized term of imprisonment is more than thirty days but not more than six months. amendment 5). 2004 (see Appendix C.10 6. November 1. the court may impose any sentence authorized by statute for each count that is a Class B or C misdemeanor or an infraction. 2009 (see Appendix C. Commentary Application Notes: 1. 2009 GUIDELINES MANUAL §1B1.9. §1B1. consider the relationship between the Class B or C misdemeanor or infraction and any other offenses of which the defendant is convicted.10. Sentences for such offenses may be consecutive to or concurrent with sentences imposed on other counts. a Class C misdemeanor is any offense for which the maximum authorized term of imprisonment is more than five days but not more than thirty days. 1988 (see Appendix C. the court should. amendment 308). 1990 (see Appendix C.— (1) In General.—In a case in which a defendant is serving a term of imprisonment. Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement) (a) Authority. is not covered by this guideline). an infraction is any offense for which the maximum authorized term of imprisonment is not more than five days. amendment 441). November 1. Amended effective November 1. November 1. In imposing sentence. 1989 (see Appendix C. The guidelines for sentencing on multiple counts do not apply to counts that are Class B or C misdemeanors or infractions. Background: For the sake of judicial economy. Amended effective November 1. 2. Notwithstanding any other provision of the guidelines. amendment 674). Historical Note: Effective June 15. however. amendment 390). amendment 736).e. not involving an agreement to provide information concerning the unlawful activity of another person. 1992 (see Appendix C. 1988 (see Appendix C. Class B or C Misdemeanors and Infractions The sentencing guidelines do not apply to any count of conviction that is a Class B or C misdemeanor or an infraction. 1991 (see Appendix C. Unless the cooperation agreement relates to the provision of information concerning the unlawful activities of others. §1B1. this guideline does not apply (i. an agreement by the defendant simply to detail the extent of his own unlawful activities. amendment 6).. and the guideline range applicable to that defendant has – 37 – .November 1. November 1. the Commission has exempted all Class B and C misdemeanors and infractions from the coverage of the guidelines.

§ 3582(c)(2) if— (A) none of the amendments listed in subsection (c) is applicable to the defendant.S. § 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended guideline range determined under subdivision (1) of this subsection.§1B1.S.S.10 GUIDELINES MANUAL November 1.S. Exception. (B) (3) Limitation.S.— (A) In General. As required by 18 U. § 3582(c)(2). proceedings under 18 U.—If the original term of imprisonment imposed was less than the term of imprisonment provided by the guideline range applicable to the defendant at the time of sentencing.—In determining whether. the court may reduce the defendant’s term of imprisonment as provided by 18 U. the court shall not reduce the defendant’s term of imprisonment under 18 U.—Consistent with subsection (b).C. and to what extent. a reduction comparably less than the amended guideline range determined under subdivision (1) of this subsection may be appropriate. § 3582(c)(2) and this policy statement is warranted.—Except as provided in subdivision (B). the court shall determine the amended guideline range that would have been applicable to the defendant if the amendment(s) to the guidelines listed in subsection (c) had been in effect at the time the defendant was sentenced. a reduction in the defendant’s term of imprisonment under 18 U.—A reduction in the defendant’s term of imprisonment is not consistent with this policy statement and therefore is not authorized under 18 U. In making such determination. (2) Exclusions. if the original term of imprisonment – 38 – (2) (B) . 2009 subsequently been lowered as a result of an amendment to the Guidelines Manual listed in subsection (c) below. (b) Determination of Reduction in Term of Imprisonment.C.C.C.C. or an amendment listed in subsection (c) does not have the effect of lowering the defendant’s applicable guideline range. § 3582(c)(2) and this policy statement do not constitute a full resentencing of the defendant. the court shall substitute only the amendments listed in subsection (c) for the corresponding guideline provisions that were applied when the defendant was sentenced and shall leave all other guideline application decisions unaffected. However.C. Limitations and Prohibition on Extent of Reduction.S. § 3582(c)(2). any such reduction in the defendant’s term of imprisonment shall be consistent with this policy statement.— (1) In General.

November 1.C.g.S.S. 488.C. 591.C. 433. § 3553(a) in determining: (I) whether a reduction in the defendant’s term of imprisonment is warranted. and 715. 220 (2005). 329. a further reduction generally would not be appropriate.S. 454. and (II) the extent of such reduction. or (ii) an amendment listed in subsection (c) is applicable to the defendant but the amendment does not have the effect of lowering the defendant’s applicable guideline range because of the operation of another guideline or statutory provision (e.C.—Consistent with 18 U. 706 as amended by 711.. 499. Accordingly. 341. Application of Subsection (a).—Amendments covered by this policy statement are listed in Appendix C as follows: 126. § 3582(c)(2).S. § 3582(c)(2) is triggered only by an amendment listed in subsection (c) that lowers the applicable guideline range. 379. 657. Commentary Application Notes: 1. (c) Covered Amendments.S. 484. Booker. 505. 599. § 3553(a) and United States v. 130. 516. a statutory mandatory minimum term of imprisonment). but only within the limits described in subsection (b).—The court shall consider the nature and seriousness of the danger to any person or the community that may be posed by a reduction in the defendant’s term of imprisonment in determining: (I) whether such a reduction is warranted. 269. Post-Sentencing Conduct. § 3582(c)(2) and is not consistent with this policy statement if: (i) none of the amendments listed in subsection (c) is applicable to the defendant.C. 506. 606.S. 490. (C) Prohibition. Factors for Consideration.10 constituted a non-guideline sentence determined pursuant to 18 U. 156. 176. but only within the limits described in subsection (b). 702. a reduction in the defendant’s term of imprisonment is not authorized under 18 U. 380. 543 U. 371. Public Safety Consideration.—In no event may the reduced term of imprisonment be less than the term of imprisonment the defendant has already served. and (II) the extent of such reduction.— (A) Eligibility. 2009 GUIDELINES MANUAL §1B1. 461.—The court may consider post-sentencing conduct of the defendant that occurred after imposition of the original term of imprisonment in determining: (I) whether a reduction in the defendant’s term of imprisonment (B) (ii) (iii) – 39 – . the court shall consider the factors set forth in 18 U.—Eligibility for consideration under 18 U.— (i) In General.

§ 3582(c)(2) and this policy statement. the sentencing court has the discretion to determine whether. a reduction to a term of imprisonment of 46 months (representing a reduction of approximately 20 percent below the minimum term of imprisonment provided by the amended guideline range determined under subsection (b)(1)) would amount to a comparable reduction and may be appropriate.—Only a term of imprisonment imposed as part of the original sentence is authorized to be reduced under this section. Modification Relating to Early Termination. All other guideline application decisions remain unaffected. to reduce a term of imprisonment under this section.§1B1. a reduction comparably less than the amended guideline range determined under subsection (b)(1) may be appropriate. (B) the original term of imprisonment imposed was 41 months. in a case in which: (A) the guideline range applicable to the defendant at the time of sentencing was 70 to 87 months. 2009 is warranted. shall the term of imprisonment be reduced below time served. In no case.— (A) Exclusion Relating to Revocation. For example.10 GUIDELINES MANUAL November 1. Supervised Release. however. the court shall not reduce the defendant’s term of imprisonment to a term that is less than the minimum term of imprisonment provided by the amended guideline range determined under subsection (b)(1). Specifically. the court shall not reduce the defendant’s term of imprisonment to a term less than 30 months. and to what extent.—In determining the amended guideline range under subsection (b)(1). but only within the limits described in subsection (b). (B) .—If the prohibition in subsection (b)(2)(C) relating to time already served precludes a reduction in the term of imprisonment to the – 40 – 3.—Under subsection (b)(2).C. 4. Application of Subsection (b)(1). 2.S. and (II) the extent of such reduction. Subject to these limitations. If the original term of imprisonment imposed was less than the term of imprisonment provided by the guideline range applicable to the defendant at the time of sentencing. the court shall substitute only the amendments listed in subsection (c) for the corresponding guideline provisions that were applied when the defendant was sentenced. the amended guideline range determined under subsection (b)(1) and the term of imprisonment already served by the defendant limit the extent to which the court may reduce the defendant’s term of imprisonment under 18 U. Application of Subsection (b)(2). if the original term of imprisonment imposed was within the guideline range applicable to the defendant at the time of sentencing. and (C) the amended guideline range determined under subsection (b)(1) is 57 to 71 months. This section does not authorize a reduction in the term of imprisonment imposed upon revocation of supervised release. and (C) the amended guideline range determined under subsection (b)(1) is 30 to 37 months. For example. in a case in which: (A) the guideline range applicable to the defendant at the time of sentencing was 41 to 51 months. (B) the defendant’s original term of imprisonment imposed was 56 months (representing a downward departure of 20 percent below the minimum term of imprisonment provided by the guideline range applicable to the defendant at the time of sentencing).

S.November 1. the court may consider any such reduction that it was unable to grant in connection with any motion for early termination of a term of supervised release under 18 U. which provides: "If the Commission reduces the term of imprisonment recommended in the guidelines applicable to a particular offense or category of offenses. the magnitude of the change in the guideline range made by the amendment. if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.S." This policy statement provides guidance and limitations for a court when considering a motion under 18 U. upon motion of the defendant or the Director of the Bureau of Prisons. The authorization of such a discretionary reduction does not otherwise affect the lawfulness of a previously imposed sentence. the court may reduce the term of imprisonment.C. 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. after considering the factors set forth in section 3553(a) to the extent that they are applicable. This criterion is in accord with the legislative history of 28 U. in the sound discretion of the court. without more. Background: Section 3582(c)(2) of Title 18. a reduction in the term of imprisonment may be appropriate for previously sentenced. § 3582(c)(2) and implements 28 U. § 3583(e)(1).C. the fact that a defendant may have served a longer term of imprisonment than the court determines would have been appropriate in view of the amended guideline range determined under subsection (b)(1) shall not." Among the factors considered by the Commission in selecting the amendments included in subsection (c) were the purpose of the amendment. which states: "It should be noted that the Committee does not expect that the Commission will recommend adjusting existing sentences under the provision when guidelines are simply refined in a way that might cause isolated instances – 41 – .C.C. The Commission has not included in this policy statement amendments that generally reduce the maximum of the guideline range by less than six months.10 extent the court determines otherwise would have been appropriate as a result of the amended guideline range determined under subsection (b)(1). does not authorize a reduction in any other component of the sentence. the court should take into account the totality of circumstances relevant to a decision to terminate supervised release. § 994(u) (formerly § 994(t)). provide a basis for early termination of supervised release. 2009 GUIDELINES MANUAL §1B1.C. qualified defendants. United States Code. provides: "[I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U. and does not entitle a defendant to a reduced term of imprisonment as a matter of right.S. and the difficulty of applying the amendment retroactively to determine an amended guideline range under subsection (b)(1). § 994(u). § 994(o). However. including the term of supervised release that would have been appropriate in connection with a sentence under the amended guideline range determined under subsection (b)(1).S. Rather. it shall specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced.S. or on its own motion.

the revised edition of the Guidelines Manual is to be applied to both offenses. it is to be used in its entirety. the Commission raised the – 42 – . May 1. Effective November 1. 1990 (see Appendix C. 1989 (see Appendix C. amendment 502). the court shall consider subsequent amendments. November 1. 180 (1983). amendments 712 and 713). 1991 (see Appendix C. §1B1. 1991. He is to be sentenced in December 1992. amendment 716). Historical Note: Effective November 1.11.. Subsection (b)(2) provides that if an earlier edition of the Guidelines Manual is used.10 GUIDELINES MANUAL November 1. The Guidelines Manual in effect on a particular date shall be applied in its entirety. However. except that subsequent clarifying amendments are to be considered. 1st Sess. amendment 710). the first committed before." S.§1B1. If the defendant is convicted of two offenses. November 1. if a court applies an earlier edition of the Guidelines Manual. 1994 (see Appendix C. March 3. 2007 (see Appendix C. amendment 423). The Committee does not believe the courts should be burdened with adjustments in these cases. to the extent that such amendments are clarifying rather than substantive changes. The court shall not apply. Probably should be "to fall above the amended guidelines". 2008 (see Appendix C. for example. 1993 (see Appendix C. amendment 469). November 1. amendment 536). 2009 of existing sentences falling above the old guidelines* or when there is only a minor downward adjustment in the guidelines. amendment 360). November 1. the court shall use the Guidelines Manual in effect on the date that the offense of conviction was committed. Rep. amendment 662). (1) If the court determines that use of the Guidelines Manual in effect on the date that the defendant is sentenced would violate the ex post facto clause of the United States Constitution. amendment 306). * So in original. 1992 (see Appendix C. November 1. Example: A defendant is convicted of an antitrust offense committed in November 1989. (b) (2) (3) Commentary Application Notes: 1. a revised edition of the Guidelines Manual became effective. amendment 504). amendment 548). 2008 (see Appendix C. 225. November 1. Amended effective November 1. 1995 (see Appendix C. November 5. November 1. 2003 (see Appendix C. November 1. 2000 (see Appendix C. amendment 607). Use of Guidelines Manual in Effect on Date of Sentencing (Policy Statement) (a) The court shall use the Guidelines Manual in effect on the date that the defendant is sentenced. 98th Cong. one guideline section from one edition of the Guidelines Manual and another guideline section from a different edition of the Guidelines Manual. 1997 (see Appendix C. and the second after.

2. the conduct charged in the count of the indictment or information of which the defendant was convicted) was determined by the court to have been committed between October 15. a revised edition of the Guidelines Manual became effective. For example.11 base offense level for antitrust offenses. Although aware of possible ex post facto clause challenges to application of the guidelines in effect at the time of sentencing. For example. 1992.e. Under the 1992 edition of the Guidelines Manual (effective November 1. the offense level of 8 and criminal history category of I from the 1989 edition of the Guidelines Manual in conjunction with the amended guideline range of 0-6 months for this offense level and criminal history category from the 1992 edition of the Guidelines Manual. 1992). No. The same would be true for a defendant convicted of two counts of embezzlement. If the court determines that application of the 1992 edition of the Guidelines Manual would violate the ex post facto clause of the United States Constitution. one committed before the amendments – 43 – . the court is to apply the guidelines and policy statements in effect at the time of sentencing. the revised edition of the Guidelines Manual is to be applied to both offenses. This is true even if the defendant’s conduct relevant to the determination of the guideline range under §1B1. Background: Subsections (a) and (b)(1) provide that the court should apply the Guidelines Manual in effect on the date the defendant is sentenced unless the court determines that doing so would violate the ex post facto clause in Article I.C. § 3553.. It shall not apply. the defendant has a guideline range of 4-10 months (final offense level of 9. S. the Commission lowered the guideline range in the Sentencing Table for cases with an offense level of 8 and criminal history category of I from 2-8 months to 0-6 months. if a defendant pleads guilty to a single count of embezzlement that occurred after the most recent edition of the Guidelines Manual became effective. related embezzlement offenses that may have occurred prior to the effective date of the guideline amendments) for the offense of conviction.November 1. even if the revised edition results in an increased penalty for the first offense.. 2009 GUIDELINES MANUAL §1B1. 1989). Congress did not believe that the ex post facto clause would apply to amended sentencing guidelines. the first committed before.. the date of October 28. While the Commission concurs in the policy expressed by Congress. the ex post facto clause does not prevent determining the sentence for that count based on the amended guidelines. the last date of the offense of conviction is the controlling date for ex post facto purposes. criminal history category of I). § 9 of the United States Constitution. 1991. 1991 and October 28. the guideline range applicable in sentencing will encompass any relevant conduct (e. 98th Cong. if the offense of conviction (i. Under subsection (b)(1). 225. for example.g. criminal history category of I). the defendant has a guideline range of 2-8 months (final offense level of 8. 77-78 (1983). Under 18 U. Subsection (b)(3) provides that where the defendant is convicted of two offenses. courts to date generally have held that the ex post facto clause does apply to sentencing guideline amendments that subject the defendant to increased punishment. 1991 (after a revised Guideline Manual took effect). Rep.3 (Relevant Conduct) included an act that occurred on November 2.S. Effective November 1. Subsection (b)(2) provides that the Guidelines Manual in effect on a particular date shall be applied in its entirety. Because the defendant completed the second offense after the amendment to the guidelines took effect. and the second after. 1st Sess. it shall apply the 1989 edition of the Guidelines Manual in its entirety. 1991 is the controlling date for ex post facto purposes. Under the 1989 edition of the Guidelines Manual (effective November 1.

Stephenson. Thus. even in a complex case involving multiple counts that occurred under several different versions of the Guidelines Manual. See United States v. §§ 5031-5042). 1989) (upholding inclusion of pre-November 1. a contrary conclusion would mean that such defendant was subject to a lower guideline range than if convicted only of the second offense. Allen. a necessary step in ascertaining the maximum sentence that may be imposed upon a juvenile delinquent is the determination of the guideline range that would be applicable to a similarly situated adult defendant. Therefore. Ykema.S. Under the guideline sentencing system. even if there are multiple counts of conviction (see §§3D1.the manual in effect at the time the last offense of conviction was completed and the manual in effect at the time of sentencing. drug quantities as relevant conduct for the count of conviction. noting that habitual offender statutes routinely augment punishment for an offense of conviction based on acts committed before a law is passed). amendment 442). 1062 (1990).1-3D1. and the second after. 901 F. Amended effective November 1.11 GUIDELINES MANUAL November 1.5. 493 U. Persons Sentenced Under the Federal Juvenile Delinquency Act (Policy Statement) The sentencing guidelines do not apply to a defendant sentenced under the Federal Juvenile Delinquency Act (18 U.2). Cusack. 1987.12.C. Congress’s directive to apply the sentencing guidelines in effect at the time of sentencing must be followed. Decisions from several appellate courts addressing the analogous situation of the constitutionality of counting pre-guidelines criminal activity as relevant conduct for a guidelines sentence support this approach. Moreover. if a defendant is sentenced in January 1992 for a bank robbery committed in October 1988 and one committed in November 1991. amendment 475). Historical Note: Effective November 1. In this example. it will not be necessary to compare more than two manuals to determine the applicable guideline range -. 1989) (similar). cert. Consequently. amendment 474). 2009 were enacted. 1992 (see Appendix C. the November 1991 Guidelines Manual should be used to determine a combined guideline range for both counts.L.2d 143 (8th Cir. 921 F.C. 1990) (similar).2d 697 (6th Cir. 5G1. the ex post facto clause would not bar application of the amended guideline to the first conviction. Historical Note: Effective November 1.2d 29 (4th Cir. the approach set forth in subsection (b)(3) should be followed regardless of whether the offenses of conviction are the type in which the conduct is grouped under §3D1. 886 F. 1990) (holding that the Sentencing Commission and Congress intended that the applicable version of the guidelines be applied as a "cohesive and integrated whole" rather than in a piecemeal fashion). United States v. See generally United States v. 1993 (see Appendix C. 503 U. 1993 (see Appendix C. the sentence imposed upon a juvenile delinquent may not exceed the maximum of the guideline range applicable to an otherwise similarly situated adult defendant unless the court finds an aggravating factor sufficient to warrant an upward departure from that guideline range.S. 291 (1992). 887 F. §1B1. see also United States v.2(d). and unless that clause would be violated.§1B1.. However. The ex post facto clause does not distinguish between groupable and nongroupable offenses.S. United States v. denied. R. – 44 – . a single sentencing range is determined based on the defendant’s overall conduct.2d 438 (2d Cir.

13.S.C. § 3582(c)(1)(A). there exists in the defendant’s case an extraordinary and compelling reason other than.—Provided the defendant meets the requirements of subdivision (2). (2) the defendant is not a danger to the safety of any other person or to the community. (iii) (iv) – 45 – . § 3553(a). The defendant is suffering from a permanent physical or medical condition. that substantially diminishes the ability of the defendant to provide selfcare within the environment of a correctional facility and for which conventional treatment promises no substantial improvement. 2009 GUIDELINES MANUAL §1B1. and (ii) has served at least 30 years in prison pursuant to a sentence imposed under 18 U. and the reduction is consistent with this policy statement.S. or the defendant (i) is at least 70 years old. and (iii). or is experiencing deteriorating physical or mental health because of the aging process.C. Application of Subsection (1)(A). extraordinary and compelling reasons exist under any of the following circumstances: (i) (ii) The defendant is suffering from a terminal illness. as provided in 18 U. the court determines that— (1) (A) (B) extraordinary and compelling reasons warrant the reduction. § 3559(c) for the offense or offenses for which the defendant is imprisoned.C.13 §1B1. Reduction in Term of Imprisonment as a Result of Motion by Director of Bureau of Prisons (Policy Statement) Upon motion of the Director of the Bureau of Prisons under 18 U.— (A) Extraordinary and Compelling Reasons. after considering the factors set forth in 18 U. As determined by the Director of the Bureau of Prisons. or in combination with.S. the court may reduce a term of imprisonment (and may impose a term of supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment) if. to the extent that they are applicable. § 3142(g).S. The death or incapacitation of the defendant’s only family member capable of caring for the defendant’s minor child or minor children. the reasons described in subdivisions (i).November 1. (3) Commentary Application Notes: 1. (ii).C.

C. 2006 (see Appendix C. Historical Note: Effective November 1. Background: This policy statement implements 28 U. 2007 (see Appendix C. amendment 683).S. rehabilitation of the defendant is not. Application of Subdivision (3). § 994(t).§1B1.S.13 GUIDELINES MANUAL November 1. an extraordinary and compelling reason for purposes of subdivision (1)(A). 2009 (B) Rehabilitation of the Defendant. 2. § 994(t).—Pursuant to 28 U. by itself.C. – 46 – . Amended effective November 1. amendment 698).—Any reduction made pursuant to a motion by the Director of the Bureau of Prisons for the reasons set forth in subdivisions (1) and (2) is consistent with this policy statement.

OFFENSE CONDUCT Introductory Commentary Chapter Two pertains to offense conduct. Part K (Departures). Chapter Four. B (Role in the Offense). 1987. – 47 – . Part B (Career Offenders and Criminal Livelihood). and C (Obstruction). Certain factors relevant to the offense that are not covered in specific guidelines in Chapter Two are set forth in Chapter Three. The chapter is organized by offenses and divided into parts and related sections that may cover one statute or many. Historical Note: Effective November 1. 2 CHAPTER TWO . Parts A (VictimRelated Adjustments). Each offense has a corresponding base offense level and may have one or more specific offense characteristics that adjust the offense level upward or downward.November 1. 2009 GUIDELINES MANUAL Ch. and Chapter Five.

—This guideline applies in cases of premeditated killing. 2113(e).C. a kidnapping in which death occurs). For additional statutory provision(s). this guideline may be applied as a result of a cross reference (e. The extent of the departure should be based upon the defendant’s state of mind (e.—If the defendant is sentenced pursuant to 18 U.1. Application Notes: 1.S. This guideline also applies when death results from the commission of certain felonies. a sentence of death may be – 48 – . Felony Murder. 2332b(a)(1). see Appendix A (Statutory Index). a downward departure may be warranted if in robbing a bank. § 848(e). 2282A. Imposition of Life Sentence. or 21 U.§2A1. § 848(e). murder in aid of racketeering).. as provided in 18 U.. § 3591 et seq.—In the case of premeditated killing.g.S. 2199.S.g. First Degree Murder (a) Base Offense Level: 43 Commentary Statutory Provisions: 18 U. For example. departure below the minimum guideline sentence provided for second degree murder in §2A1. and the nature of the underlying offense conduct.1 GUIDELINES M ANUAL November 1. the defendant merely passed a note to the teller.C. Also. recklessness or negligence). (B) 3.S. A downward departure would not be appropriate in such a case. For example.C. or in cases in which the offense level of a guideline is calculated using the underlying crime (e. because death obviously is an aggravating factor. 2291.— (A) Offenses Involving Premeditated Killing.. 1992(a)(7). as a result of which the teller had a heart attack and died. However. Applicability of Guideline When Death Sentence Not Imposed. 1841(a)(2)(C). the degree of risk inherent in the conduct. A downward departure from a mandatory statutory term of life imprisonment is permissible only in cases in which the government files a motion for a downward departure for the defendant’s substantial assistance. 2118(c)(2). §§ 1111.S. it necessarily would be inappropriate to impose a sentence at a level below that which the guideline for the underlying offense requires in the absence of death. Applicability of Guideline.2 (Second Degree Murder) is not likely to be appropriate.C. 2340A. a downward departure may be warranted. HOMICIDE §2A1. 2. § 3553(e). 21 U. 2009 PART A . life imprisonment is the appropriate sentence if a sentence of death is not imposed.g.OFFENSES AGAINST THE PERSON 1.C.—If the defendant did not cause the death intentionally or knowingly.

2009 GUIDELINES MANUAL §2A1. For additional statutory provision(s). November 1. amendments 699 and 700). §§ 1111. November 1.C. November 1. For additional statutory provision(s). if the offense involved criminally negligent conduct. Second Degree Murder (a) Base Offense Level: 38 Commentary Statutory Provisions: 18 U. 2007 (see Appendix C. 1841(a)(2)(C). 2002 (see Appendix C. amendment 637).8 (Extreme Conduct). 2002 (see Appendix C. see Appendix A (Statutory Index).—If the defendant’s conduct was exceptionally heinous. 1841(a)(2)(C). November 1. 2199.S. 1993 (see Appendix C.4 imposed under the specific provisions contained in that statute. Involuntary Manslaughter (a) Base Offense Level: (1) 12. November 1. November 1. November 1. 2006 (see Appendix C. 2007 (see Appendix C. 2006 (see Appendix C. amendment 637). November 1. amendment 663). 1987. amendments 699 and 700). Historical Note: Effective November 1. brutal. 2199.C. Historical Note: Effective November 1.2. Upward Departure Provision. Amended effective November 1. 2291. or – 49 – . Amended effective November 1. Voluntary Manslaughter (a) Base Offense Level: 29 Commentary Statutory Provisions: 18 U. amendment 663). This guideline applies when a sentence of death is not imposed under those specific provisions. 2007 (see Appendix C.November 1. Application Note: 1. amendment 82). see Appendix A (Statutory Index). November 1. amendment 310). 2006 (see Appendix C. November 1. Historical Note: Effective November 1. See §5K2. amendment 685). amendment 685). 1989 (see Appendix C. amendment 637). 2004 (see Appendix C. 2002 (see Appendix C. 2004 (see Appendix C. amendment 476). amendment 685). §2A1. an upward departure may be warranted. November 1. 1987. amendment 663). amendment 699). cruel. 2291. 2332b(a)(1). 2004 (see Appendix C. §§ 1112. §2A1.S.4.3. §2A1. 2340A. 2332b(a)(1). Amended effective November 1. 2282A. or degrading to the victim. 1987. November 1. 1990 (see Appendix C.

C. § 1112.S. amendment 663). 2009 (Apply the greater): (A) (B) 18. § 1992(d)(7). 2006 (see Appendix C. Definitions. 2332b(a)(1). "Mass transportation" has the meaning given that term in 18 U. November 1. Conspiracy or Solicitation to Commit Murder (a) Base Offense Level: 33 – 50 – . Historical Note: Effective November 1.S. Application Note: 1. 2007 (see Appendix C. see Appendix A (Statutory Index). "Means of transportation" includes a motor vehicle (including an automobile or a boat) and a mass transportation vehicle. but which is not reckless. Chapter Three. 1841(a)(2)(C). convictions for involuntary manslaughter under 18 U. 2004 (see Appendix C. 1987. or similarly dangerous actions. "Reckless" means a situation in which the defendant was aware of the risk created by his conduct and the risk was of such a nature and degree that to disregard that risk constituted a gross deviation from the standard of care that a reasonable person would exercise in such a situation. Part D (Multiple Counts) shall be applied as if the involuntary manslaughter of each person had been contained in a separate count of conviction. A homicide resulting from driving a means of transportation. 2002 (see Appendix C.4 (2) GUIDELINES M ANUAL November 1. amendment 652). or 22. 2003 (see Appendix C. if the offense involved reckless conduct. amendment 699). (b) Special Instruction (1) If the offense involved the involuntary manslaughter of more than one person. amendment 637). if the offense involved the reckless operation of a means of transportation. November 1.C.S. For additional statutory provision(s). November 1.§2A1. while under the influence of alcohol or drugs ordinarily should be treated as reckless. 2291. 2199. Amended effective November 1. "Reckless" includes all.5.C. November 1. §§ 1112. Commentary Statutory Provisions: 18 U. §2A1. Offenses with this characteristic usually will be encountered as assimilative crimes.—For purposes of this guideline: "Criminally negligent" means conduct that involves a gross deviation from the standard of care that a reasonable person would exercise under the circumstances. or nearly all. amendment 685).

ASSAULT §2A2. increase by 4 levels. (2) Commentary Statutory Provisions: 18 U. or (C) the degree of injury is between that specified in subdivisions (A) and (B).1 (Assault with Intent to Commit Murder. amendment 663). 373. 2004 (see Appendix C.1. increase by 3 levels. Attempted Murder (a) Base Offense Level: (1) 33. * * * * * 2.C. increase by 2 levels. Attempted Murder). apply §2A2. Assault with Intent to Commit Murder.1 (First Degree Murder). Historical Note: Effective November 1. (2) – 51 – . If the offense resulted in an attempted murder or assault with intent to commit murder. (c) Cross References (1) If the offense resulted in the death of a victim. 2009 GUIDELINES MANUAL §2A2. increase by 4 levels. 371. amendment 311). (2) (b) Specific Offense Characteristics (1) If (A) the victim sustained permanent or life-threatening bodily injury. §§ 351(d). 1751(d).November 1.S. otherwise. 1990 (see Appendix C. if the object of the offense would have constituted first degree murder. increase by 4 levels. (B) the victim sustained serious bodily injury. If the offense involved the offer or the receipt of anything of pecuniary value for undertaking the murder. 1117.1 (b) Specific Offense Characteristic (1) If the offense involved the offer or the receipt of anything of pecuniary value for undertaking the murder. or 27. Amended effective November 1. apply §2A1.

1990 (see Appendix C. Background: This section applies to the offenses of assault with intent to commit murder and attempted murder. (B) a dangerous weapon (including a firearm) was otherwise used.1 (Application Instructions). amendment 391). 2009 Commentary Statutory Provisions: 18 U. November 1. 2006 (see Appendix C. November 1. Upward Departure Provision. §§ 113(a)(1). §2A2. 1991 (see Appendix C.C. Definitions. 1987. 1113.—If the offense created a substantial risk of death or serious bodily injury to more than one person.1 GUIDELINES M ANUAL November 1.—For purposes of this guideline: "First degree murder" means conduct that.S. is covered under §2A2. 2007 (see Appendix C. amendment 637). an upward departure may be warranted. Application Notes: 1. 1995 (see Appendix C. Amended effective November 1. increase the offense level according to the seriousness of the injury: Degree of Bodily Injury (A) (B) Bodily Injury Serious Bodily Injury – 52 – (3) Increase in Level add 3 add 5 . 1116(a). November 1. amendments 83 and 84). For additional statutory provision(s).C. increase by 4 levels. November 1. would constitute first degree murder under 18 U. 1992(a)(7). or assault with intent to commit manslaughter. "Permanent or life-threatening bodily injury" and "serious bodily injury" have the meaning given those terms in Application Note 1 of the Commentary to §1B1. 1989 (see Appendix C. amendment 685). November 1. § 1111. if committed within the special maritime and territorial jurisdiction of the United States.§2A2. If the victim sustained bodily injury. (C) a dangerous weapon (including a firearm) was brandished or its use was threatened.2 (Aggravated Assault). If (A) a firearm was discharged. 1841(a)(2)(C). increase by 3 levels. 2002 (see Appendix C. 2004 (see Appendix C. 2291. amendment 663). increase by 5 levels. An attempted manslaughter. 2. see Appendix A (Statutory Index). November 1. increase by 2 levels. amendment 699).2. November 1. 1751(c). 351(c). 2199. Aggravated Assault (a) (b) Base Offense Level: 14 Specific Offense Characteristics (1) (2) If the assault involved more than minimal planning.S. amendment 534). Historical Note: Effective November 1. amendment 311).

S. Application Note 1.—For purposes of this guideline: "Aggravated assault" means a felonious assault that involved (A) a dangerous weapon with intent to cause bodily injury (i. add 6 levels. waiting to commit the offense when no witnesses were – 53 – .1 (Application Instructions). 112. "More than minimal planning" also exists if significant affirmative steps were taken to conceal the offense. 115(a). 2340A. the cumulative adjustments from application of subdivisions (2) and (3) shall not exceed 10 levels. If the offense involved the violation of a court protection order.1. 1841(a)(2)(C). For example. or (C) an intent to commit another felony. (B) serious bodily injury. a car. "Brandished. Application Notes: 1." "firearm. (b)(1). "Dangerous weapon" has the meaning given that term in §1B1. 113(a)(2)." have the meaning given those terms in §1B1.. and includes any instrument that is not ordinarily used as a weapon (e. or an ice pick) if such an instrument is involved in the offense with the intent to commit bodily injury. If the defendant was convicted under 18 U. 2291. or If the degree of injury is between that specified in subdivisions (B) and (C). 1751(e).g. a chair.e. add 4 levels. increase by 2 levels." "bodily injury. not merely to frighten) with that weapon. 114.2 (C) Permanent or Life-Threatening Bodily Injury add 7 (D) If the degree of injury is between that specified in subdivisions (A) and (B). 1992(a)(7). § 111(b) or § 115.C. (4) If the assault was motivated by a payment or offer of money or other thing of value. "more than minimal planning" means more planning than is typical for commission of the offense in a simple form. 351(e). (3)." and "serious bodily injury.C. (5) (6) Commentary Statutory Provisions: 18 U.S." "permanent or life-threatening bodily injury. see Appendix A (Statutory Index). Definitions..—For purposes of subsection (b)(1).1 (Obstructing or Impeding the Administration of Justice) applies. 2009 GUIDELINES MANUAL §2A2. increase by 2 levels. For additional statutory provision(s). 2. 2332b(a)(1). Application Note 1. (E) However. 2199.November 1. other than conduct to which §3C1." "otherwise used. increase by 2 levels. Application of Subsection (b)(1). (6). §§ 111.

C.1 (Assault with Intent to Commit Murder. November 1. amendment 614). the structure follows §2A2. Background: This guideline covers felonious assaults that are more serious than minor assaults because of the presence of an aggravating factor. November 1. luring the victim to a specific location or wearing a ski mask to prevent identification would constitute more than minimal planning.2 (Official Victim) also shall apply. Historical Note: Effective November 1. Amended effective November 1. Consequently. November 1. November 1.1 (Criminal Sexual Abuse.e..2 (Official Victim) in order to address adequately the directive in section 11008(e)(2)(D) of the Act.S. §§ 111 and 115. Application of Official Victim Adjustment. (2) – 54 – . amendments 85 and 86). amendment 637). In such a case. or the intent to commit another felony.§2A2. amendment 311). 2009 present would not alone constitute more than minimal planning. 1989 (see Appendix C. Assault with intent to commit rape is covered by §2A3. otherwise. amendment 534). 2006 (see Appendix C.1. §3A1.2 GUIDELINES M ANUAL November 1. 1997 (see Appendix C. Minor Assault (a) Base Offense Level: (1) 7.3. 2001 (see Appendix C. or 4. 3. 4. amendment 685). 2004 (see Appendix C. 1990 (see Appendix C. i. amendment 663). Attempted Murder). the base offense level and the weapon enhancement in subsection (b)(2) take into account different aspects of the offense. The enhancement in subsection (b)(6) is cumulative to the adjustment in §3A1. By contrast. amendment 699).—If subsection (b)(6) applies.—In a case involving a dangerous weapon with intent to cause bodily injury. This guideline also covers attempted manslaughter and assault with intent to commit manslaughter. which provides that the Commission shall consider "the extent to which sentencing enhancements within the Federal guidelines and the authority of the court to impose a sentence in excess of the applicable guideline range are adequate to ensure punishment at or near the maximum penalty for the most egregious conduct covered by" 18 U. November 1. November 1. the court shall apply both the base offense level and subsection (b)(2). serious bodily injury. Attempt to Commit Criminal Sexual Abuse). Such offenses occasionally may involve planning or be committed for hire. Application of Subsection (b)(2). 1995 (see Appendix C. Subsection (b)(6) implements the directive to the Commission in subsection 11008(e) of the 21st Century Department of Justice Appropriations Act (the "Act"). 1987. 2002 (see Appendix C. Public Law 107–273. amendment 549). §2A2. November 1. Assault with intent to commit murder is covered by §2A2. if the offense involved physical contact. An assault that involves the presence of a dangerous weapon is aggravated in form when the presence of the dangerous weapon is coupled with the intent to cause bodily injury. 2007 (see Appendix C. or if a dangerous weapon (including a firearm) was possessed and its use was threatened. the involvement of a dangerous weapon with intent to cause bodily injury. even if application of the base offense level and the weapon enhancement is based on the same conduct. November 1.

1 (Application Instructions). (c) Cross Reference (1) If the conduct constituted aggravated assault. see Appendix A (Statutory Index). 2009 GUIDELINES MANUAL §2A2. increase by 4 levels. 1989 (see Appendix C. § 113(b)(1).S. and "firearm" have the meaning given those terms in Application Note 1 of the Commentary to §1B1. or a felonious assault not covered by §2A2." See 18 U.November 1.—For purposes of this guideline: "Bodily injury". 2007 (see Appendix C. 2199. Amended effective October 15.4 (b) Specific Offense Characteristic (1) If (A) the victim sustained bodily injury. increase by 2 levels. Commentary Statutory Provisions: 18 U. November 1.—Conduct that forms the basis for application of subsection (a)(1) also may form the basis for application of the enhancement in subsection (b)(1)(A) or (B). 2. or (B) a dangerous weapon – 55 – . November 1. 1751(e). "Minor assault" means a misdemeanor assault. §2A2. Background: Minor assault and battery are covered in this section. Application Notes: 1. 2291. "dangerous weapon". amendments 87 and 88). Obstructing or Impeding Officers (a) (b) Base Offense Level: 10 Specific Offense Characteristics (1) If (A) the offense involved physical contact. Historical Note: Effective November 1. November 1. 1988 (see Appendix C. amendment 663). or (B) a temporary but substantial loss or impairment of the function of any bodily member. "Substantial bodily injury" means "bodily injury which involves (A) a temporary but substantial disfigurement.2 (Aggravated Assault). or (B) the offense resulted in substantial bodily injury to an individual under the age of sixteen years.4. apply §2A2. Definitions.C. November 1.C. Application of Subsection (b)(1). amendment 699). For additional statutory provision(s). 115(a). amendment 510). amendment 64). organ. 351(e). §§ 112. 115(b)(1).S. 2004 (see Appendix C. or mental faculty.2 (Aggravated Assault). 1995 (see Appendix C. 1987.

2005 (see Appendix C. § 758 for fleeing or evading a law enforcement checkpoint at high speed will often.—For purposes of this guideline. but not always.2 (Aggravated Assault). involve the creation of that risk). 3. November 1.2 (Aggravated Assault).S. amendment 443). 1988 (see Appendix C. see Appendix A (Statutory Index). 2007 (see Appendix C. amendment 550). amendment 679). (2) (c) If the victim sustained bodily injury. * * * * * – 56 – . November 1. 3056(d). November 1. Application Notes: 1.4 GUIDELINES M ANUAL November 1.C. "bodily injury". For additional statutory provision(s). Commentary Statutory Provisions: 18 U. the base offense level does not incorporate the possibility that the defendant may create a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement official (although an offense under 18 U.C.2 (Official Victim) unless. amendments 89 and 90).1 (Application Instructions).—The base offense level incorporates the fact that the victim was a governmental officer performing official duties.—The base offense level does not assume any significant disruption of governmental functions.§2A2. 1501.2 (Reckless Endangerment During Flight). 1992 (see Appendix C. and "firearm" have the meaning given those terms in Application Note 1 of the Commentary to §1B1. Application of Certain Chapter Three Adjustments. pursuant to subsection (c). apply §3C1. do not apply §3A1. amendment 64). 1502. amendment 699). §§ 111. November 1. apply §2A2. Definitions. increase by 3 levels. the offense level is determined under §2A2. Therefore. 2009 (including a firearm) was possessed and its use was threatened. 2. November 1. Historical Note: Effective October 15. See §5K2. 2237(a)(1). Amended effective November 1. In situations involving such disruption. Upward Departure Provision. Conversely. increase by 2 levels. "dangerous weapon".7 (Disruption of Governmental Function).S. 2004 (see Appendix C. If the defendant creates that risk and no higher guideline adjustment is applicable for the conduct creating the risk. amendment 663). an upward departure may be warranted. Cross Reference (1) If the conduct constituted aggravated assault. 1989 (see Appendix C. (a)(2)(A). 1997 (see Appendix C.

amendment 701). increase by 2 levels.S. § 2241(a) or (b). increase by 2 levels.S. entice. §2A3. or 30.1 (First Degree Murder). to persuade. or (B) a person held in the custody of a correctional facility. § 2241(c). otherwise. 2007 (see Appendix C. 1987. induce. care. If the victim was abducted. to engage in prohibited sexual conduct. by a minor or a participant. or (C) if the degree of injury is between that specified in subdivisions (A) and (B). increase by 2 levels. if the resulting offense level is greater than that determined above.C.C. increase by 3 levels. Attempt to Commit Criminal Sexual Abuse (a) Base Offense Level: (1) (2) (b) 38. Criminal Sexual Abuse.1. if the defendant was convicted under 18 U. or (B) the victim had attained the age of twelve years but had not attained the age of sixteen years. – 57 – . increase by 2 levels. If subsection (a)(2) applies and (A) the victim had not attained the age of twelve years. or (B) the use of a computer or an interactive computer service. or coerce a minor to engage in prohibited sexual conduct.C. Amended effective November 1. apply §2A1. If. 2009 GUIDELINES MANUAL §2A3. increase by 4 levels. increase by 4 levels. CRIMINAL SEXUAL ABUSE AND OFFENSES RELATED TO REGISTRATION AS A SEX OFFENDER Historical Note: Effective November 1. (B) if the victim sustained serious bodily injury. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States.November 1. Specific Offense Characteristics (1) If the offense involved conduct described in 18 U.1 3. If the victim was (A) in the custody. (A) If the victim sustained permanent or life-threatening bodily injury. to facilitate transportation or travel.S. or supervisory control of the defendant. the offense involved (A) the knowing misrepresentation of a participant’s identity. increase by 4 levels. increase by 4 levels. (2) (3) (4) (5) (6) (c) Cross References (1) If a victim was killed under circumstances that would constitute murder under 18 U. or if.

—For purposes of this guideline: "Abducted". "Child pornography" has the meaning given that term in 18 U.S. transporting.1 (Application Instructions). or offering or seeking by notice or advertisement. (d) Special Instruction (1) If the offense occurred in the custody or control of a prison or other correctional facility and the victim was a prison official.1 (2) GUIDELINES M ANUAL November 1.2 (Official Victim). § 1030(e)(1). 2242.C. but does not include the mere solicitation of such material by a defendant. the offense shall be deemed to have an official victim for purposes of subsection (c)(2) of §3A1. production. for purposes of this guideline. apply §2G2. "Interactive computer service" has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U. "Distribution" means any act. see Appendix A (Statutory Index). and "serious bodily injury" have the meaning given those terms in Application Note 1 of the Commentary to §1B1.S. § 2256(8). However. Custodian Permitting Minor to Engage in Sexually Explicit Conduct. § 230(f)(2)). "Custody or control" and "prison official" have the meaning given those terms in Application Note 4 of the Commentary to §3A1. and advertisement. "serious bodily injury" means conduct other than criminal sexual abuse. Commentary Statutory Provisions: 18 U. related to the transfer of material involving the sexual exploitation of a minor.C. which already is taken into account in the base offense level under subsection (a). §§ 2241. distribution includes posting material involving the sexual exploitation of a minor on a website for public viewing. a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct. "permanent or life-threatening bodily injury". – 58 – . if the resulting offense level is greater than that determined above. permitting. 2009 If the offense involved causing.S.§2A3. For additional statutory provision(s).C.1 (Sexually Exploiting a Minor by Production of Sexually Explicit Visual or Printed Material. Definitions. Application Notes: 1. Accordingly.S.2 (Official Victim). Advertisement for Minors to Engage in Production). "Computer" has the meaning given that term in 18 U. transportation. including possession with intent to distribute.C.

S. 2009 GUIDELINES MANUAL §2A3. intoxicant. or Supervisory Control. Inapplicability of Chapter Three Adjustment. and (C) does not include trafficking in.C.— (A) Definitions. baby-sitters. serious bodily injury.1 "Minor" means (A) an individual who had not attained the age of 18 years. or (D) administering by force or threat of force. or in a case in which the ability of the victim to appraise or control conduct was substantially impaired by drugs or alcohol. child pornography. whether temporarily or permanently.C. § 2241(c) is that the defendant engaged in conduct described in 18 U. "conduct described in 18 U. "Victim" includes an undercover law enforcement officer. and (ii) could be provided for the purposes of engaging in sexually explicit conduct. Application of Subsection (b)(1). teachers. For example.S.—If the conduct that forms the basis for a conviction under 18 U. whether fictitious or not. (B) threatening or placing the victim in fear that any person will be subject to death. Custody. 2.C. (B) an individual.C. if any dangerous weapon was used or brandished. do not apply subsection (b)(1).S. Application of Subsection (b)(3).3 (Abuse of Position of Trust or Use of Special Skill). who a law enforcement officer represented to a participant (i) had not attained the age of 18 years.1 (Aggravating Role).—Subsection (b)(3) is to be construed broadly and includes offenses involving a victim less than 18 years of age entrusted to the defendant. "Participant" has the meaning given that term in Application Note 1 of the Commentary to §3B1. (B) – 59 – . "Prohibited sexual conduct" (A) means any sexual activity for which a person can be charged with a criminal offense. or without the knowledge or permission of the victim. or kidnapping. or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years.— (A) Care. for example.S. Application in Cases Involving a Conviction under 18 U. § 2241(a) or (b)" is engaging in.—If the enhancement in subsection (b)(3) applies. day care providers. § 2241(c). a drug. (B) includes the production of child pornography. or causing another person to engage in. § 2241(a) or (b). or other similar substance and thereby substantially impairing the ability of the victim to appraise or control conduct. the court should look to the actual relationship that existed between the defendant and the minor and not simply to the legal status of the defendant-minor relationship.—For purposes of subsection (b)(1). a sexual act with another person by: (A) using force against the victim. (B) 3. (C) rendering the victim unconscious. or other temporary caretakers are among those who would be subject to this enhancement.November 1. This provision would apply. In determining whether to apply this enhancement. or possession of. do not apply §3B1.

1993 (see Appendix C. November 1. using.1 4. by a minor or a participant. Accordingly. without such intent. 1991 (see Appendix C. or (B) facilitate transportation or travel. November 1. 2004 (see Appendix C. Subsection (b)(6)(A) is intended to apply only to misrepresentations made directly to a minor or to a person who exercises custody. Upward Departure Provision. The misrepresentation to which the enhancement in subsection (b)(6)(A) may apply includes misrepresentation of a participant’s name.—If a victim was sexually abused by more than one participant. induce. November 1. transporting. amendment 664).—For purposes of subsection (c)(2). entice. would not be a sufficient basis for application of the enhancement. amendment 444). Accordingly. 5. amendment 392). or offering or seeking by notice or advertisement. November 1.S. amendment 615). Amended effective November 1. amendment 477). Application of Subsection (c)(2). § 2256(2). entice. – 60 – . amendment 545).— (A) Misrepresentation of Participant’s Identity. 2001 (see Appendix C.—The enhancement in subsection (b)(6)(A) applies in cases involving the misrepresentation of a participant’s identity to (A) persuade. November 1. 2008 (see Appendix C. (B) Use of a Computer or Interactive Computer Service. 1992 (see Appendix C. See §5K2. care. or coerce a minor to engage in prohibited sexual conduct. November 1. Definition. 1987. permitting. 2007 (see Appendix C. (B) 6. amendment 511). or (ii) facilitate transportation or travel. "sexually explicit conduct" has the meaning given that term in 18 U. use of a computer screen name.C. amendment 701). or coerce a minor to engage in prohibited sexual conduct. by a minor or a participant. age.§2A3. enticing.— (A) In General. Subsection (b)(6)(B) is intended to apply only to the use of a computer or an interactive computer service to communicate directly with a minor or with a person who exercises custody. 1997 (see Appendix C. an upward departure may be warranted. occupation. as long as the misrepresentation was made with the intent to (A) persuade. amendments 91 and 92). the enhancement would not apply to the use of a computer or an interactive computer service to obtain airline tickets for the minor from an airline’s Internet site. the enhancement in subsection (b)(6)(A) would not apply to a misrepresentation made by a participant to an airline representative in the course of making travel arrangements for the minor. by a minor or a participant. or (B) facilitate transportation or travel. November 1. entice. care. to engage in prohibited sexual conduct.—The cross reference in subsection (c)(2) is to be construed broadly and includes all instances where the offense involved employing. 2009 Application of Subsection (b)(6). amendments 592 and 601). gender. induce. inducing. or coerce a minor to engage in prohibited sexual conduct. November 1. a minor to engage in sexually explicit conduct for the purpose of producing any visual depiction of such conduct. November 1.—Subsection (b)(6)(B) provides an enhancement if a computer or an interactive computer service was used to (i) persuade. GUIDELINES M ANUAL November 1. or status. induce. to engage in prohibited sexual conduct. amendment 725). 1995 (see Appendix C.8 (Extreme Conduct). coercing. to engage in prohibited sexual conduct. 2000 (see Appendix C. Accordingly. 1989 (see Appendix C. November 1. 2003 (see Appendix C. or supervisory control of the minor. November 1. or supervisory control of the minor. amendment 661). Historical Note: Effective November 1. persuading.

Application Notes: 1. § 1030(e)(1). whether fictitious or not. or coerce the minor to engage in prohibited sexual conduct. Definitions. or coerce the minor to engage in prohibited sexual conduct.S.S. §2A3.C. apply §2A3. and (B)(i) the offense involved the knowing misrepresentation of a participant’s identity to persuade. 2009 GUIDELINES MANUAL §2A3. Criminal Sexual Abuse of a Minor Under the Age of Sixteen Years (Statutory Rape) or Attempt to Commit Such Acts (a) (b) Base Offense Level: 18 Specific Offense Characteristics (1) If the minor was in the custody. and (ii) could be provided for the purposes of engaging in sexually explicit conduct. induce. entice. Commentary Statutory Provision: 18 U.1 (Criminal Sexual Abuse.S.2 §2A3. If the victim had not attained the age of 12 years. § 2243(a). § 230(f)(2)). or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 16 years. see Appendix A (Statutory Index).1 shall apply. If (A) subsection (b)(1) does not apply. For additional statutory provision(s). If a computer or an interactive computer service was used to persuade. Attempt to Commit Criminal Sexual Abuse). § 2241 or § 2242). induce.S. who a law enforcement officer represented to a participant (i) had not attained the age of 16 years.C. or supervisory control of the defendant. entice. – 61 – .2.November 1. or (ii) a participant otherwise unduly influenced the minor to engage in prohibited sexual conduct. increase by 4 levels.C. (B) an individual. "Interactive computer service" has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U. care. (2) (3) (c) Cross Reference (1) If the offense involved criminal sexual abuse or attempt to commit criminal sexual abuse (as defined in 18 U.—For purposes of this guideline: "Computer" has the meaning given that term in 18 U. increase by 4 levels. regardless of the "consent" of the victim.C. increase by 2 levels. "Minor" means (A) an individual who had not attained the age of 16 years.

Subsection (b)(2)(B)(i) is intended to apply only to misrepresentations made directly to the minor or to a person who exercises custody.1 (Aggravating Role). without such intent. age. or Supervisory Control Enhancement.2 GUIDELINES M ANUAL November 1. as long as the misrepresentation was made with the intent to persuade. or coerce the minor to engage in prohibited sexual conduct. induce. However. Accordingly. Accordingly. or coerce the minor to engage in prohibited sexual conduct. In determining whether to apply this enhancement. For example. entice. subsection (b)(2)(B)(ii) does not apply in a case in which the only "minor" (as defined in Application Note 1) involved in the offense is an undercover law enforcement officer.— (A) Misrepresentation of Identity. Attempt to Commit Criminal Sexual Abuse).3 (Abuse of Position of Trust or Use of Special Skill). day care providers. Inapplicability of Chapter Three Adjustment. there shall be – 62 – . 2009 "Participant" has the meaning given that term in Application Note 1 of §3B1. The voluntariness of the minor’s behavior may be compromised without prohibited sexual conduct occurring. gender.§2A3.— (A) In General. entice. or status. (B) Undue Influence. whether temporarily or permanently. do not apply subsection (b)(2) or §3B1. Care. Application of Subsection (b)(2). or other temporary caretakers are among those who would be subject to this enhancement. In a case in which a participant is at least 10 years older than the minor. The misrepresentation to which the enhancement in subsection (b)(2)(B)(i) may apply includes misrepresentation of a participant’s name. teachers. the enhancement in subsection (b)(2)(B)(i) would not apply to a misrepresentation made by a participant to an airline representative in the course of making travel arrangements for the minor.—In determining whether subsection (b)(2)(B)(ii) applies. Custody. the court should closely consider the facts of the case to determine whether a participant’s influence over the minor compromised the voluntariness of the minor’s behavior.1 (Criminal Sexual Abuse. 2. "Prohibited sexual conduct" has the meaning given that term in Application Note 1 of §2A3. (B) 3. use of a computer screen name. the court should look to the actual relationship that existed between the defendant and the minor and not simply to the legal status of the defendant-minor relationship. baby-sitters. or supervisory control of the minor. care.—If the enhancement in subsection (b)(1) applies. induce. occupation.—Subsection (b)(1) is intended to have broad application and is to be applied whenever the minor is entrusted to the defendant. would not be a sufficient basis for application of the enhancement.—The enhancement in subsection (b)(2)(B)(i) applies in cases involving the misrepresentation of a participant’s identity to persuade.

(B) the victim had attained the age of 12 years but not attained the age of 16 years. care. amendment 592). § 2242(1)). § 2243(a). For example.C. Background: This section applies to offenses involving the criminal sexual abuse of an individual who had not attained the age of 16 years. some degree of undue influence can be presumed because of the substantial difference in age between the participant and the minor.S. November 1. 1989 (see Appendix C. prosecuted under 18 U. and was placed in fear of death.— Subsection (c)(1) provides a cross reference to §2A3. it also applies to cases. 2001 (see Appendix C. § 2243(a).November 1.S. Criminal Sexual Abuse of a Ward or Attempt to Commit Such Acts (a) (b) Base Offense Level: 14 Specific Offense Characteristics – 63 – . Cross Reference.—Subsection (b)(3) provides an enhancement if a computer or an interactive computer service was used to persuade. Application of Subsection (b)(3). in which a participant took active measure(s) to unduly influence the minor to engage in prohibited sexual conduct and. § 2241(c)). § 2241 or § 2242.S. 6. as defined in 18 U. amendment 93).S. 2009 GUIDELINES MANUAL §2A3.(c)). induce. November 1. amendment 511). Historical Note: Effective November 1. §2A3. §2A3.—There may be cases in which the offense level determined under this guideline substantially understates the seriousness of the offense. November 1. or the production of pornography. entice.C. In such cases. or supervisory control of the minor. 2000 (see Appendix C. For example. regardless of the "consent" of the minor. § 2243(a) that would be lawful but for the age of the minor. thus. November 1. 2004 (see Appendix C. the voluntariness of the minor’s behavior was compromised.C. or coerce the minor to engage in prohibited sexual conduct. 1987. § 2241(a).1 (Criminal Sexual Abuse.1 shall apply if (A) the victim had not attained the age of 12 years (see 18 U. transporting persons for the purpose of prostitution. 1992 (see Appendix C. A four-level enhancement is provided in subsection (b)(2) for such cases.C. 5. November 1.3 a rebuttable presumption that subsection (b)(2)(B)(ii) applies.C. an upward departure may be warranted if the defendant committed the criminal sexual act in furtherance of a commercial scheme such as pandering. Amended effective November 1. 2009 (see Appendix C.1 (Criminal Sexual Abuse. serious bodily injury. the cross reference to §2A3.S. In such a case.S. Upward Departure Consideration. or kidnaping (see 18 U. November 1. or (C) the victim was threatened or placed in fear other than fear of death. November 1. serious bodily injury. or kidnaping (see 18 U.C. Attempt to Commit Criminal Sexual Abuse) if the offense involved criminal sexual abuse or attempt to commit criminal sexual abuse. amendment 444). A four-level enhancement is provided in subsection (b)(1) for a defendant who victimizes a minor under his supervision or care. 4. It is assumed that at least a four-year age difference exists between the minor and the defendant.S. 1995 (see Appendix C. as specified in 18 U.3. amendment 664). amendment 392). However. an upward departure may be warranted. Attempt to Commit Criminal Sexual Abuse) will apply. 1991 (see Appendix C. amendment 615). amendment 732). Subsection (b)(3) is intended to apply only to the use of a computer or an interactive computer service to communicate directly with the minor or with a person who exercises custody.C. if the minor had not attained the age of 12 years. While this section applies to consensual sexual acts prosecuted under 18 U.

2009 If the offense involved the knowing misrepresentation of a participant’s identity to persuade. The misrepresentation to which the enhancement in subsection (b)(1) may apply includes misrepresentation of a participant’s name.C. would not be a sufficient basis for application of the enhancement. induce. induce. increase by 2 levels. If a computer or an interactive computer service was used to persuade.S. gender.1 (Criminal Sexual Abuse. or status. induce. For additional statutory provision(s). Subsection (b)(1) is intended to apply only to misrepresentations made directly to a minor or to a person who exercises custody. (B) an individual. use of a computer screen name. who a law enforcement officer represented to a participant (i) had not attained the age of 18 years. Application of Subsection (b)(1). or coerce a minor to engage in prohibited sexual conduct. or supervisory control of the minor. entice. supervisory.3 (1) GUIDELINES M ANUAL November 1. without such intent. whether fictitious or not. or coerce a minor to engage in prohibited sexual conduct. 2. (2) Commentary Statutory Provision: 18 U.1 (Aggravating Role). Accordingly. "Interactive computer service" has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U.C. or coerce a minor to engage in prohibited sexual conduct. care. as long as the misrepresentation was made with the intent to persuade. "Participant" has the meaning given that term in Application Note 1 of the Commentary to §3B1.—The enhancement in subsection (b)(1) applies in cases involving the misrepresentation of a participant’s identity to persuade. § 2243(b). entice. § 1030(e)(1). Application Notes: 1. age. "Ward" means a person in official detention under the custodial. "Prohibited sexual conduct" has the meaning given that term in Application Note 1 of the Commentary to §2A3. and (ii) could be provided for the purposes of engaging in sexually explicit conduct. Attempt to Commit Criminal Sexual Abuse). increase by 2 levels. "Minor" means (A) an individual who had not attained the age of 18.—For purposes of this guideline: "Computer" has the meaning given that term in 18 U. occupation. see Appendix A (Statutory Index).S. induce. § 230(f)(2)).C.§2A3. entice. or coerce a minor to engage in prohibited sexual conduct. Definitions.S. entice. – 64 – . or disciplinary authority of the defendant. or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years.

4. or coerce a minor to engage in prohibited sexual conduct. if the offense involved conduct described in 18 U. and the victim had attained the age of twelve years but had not attained the age of sixteen years. 2004 (see Appendix C. amendment 701). 16. otherwise. increase to level 22. entice. If the base offense level is determined under subsection (a)(1) or (2). amendment 592).—Subsection (b)(2) provides an enhancement if a computer or an interactive computer service was used to persuade. (2) (3) (b) Specific Offense Characteristics (1) If the victim had not attained the age of twelve years. (2) (3) (4) (5) (c) Cross References (1) If the offense involved criminal sexual abuse or attempt to commit – 65 – . November 1. 1989 (see Appendix C. Historical Note: Effective November 1.C. Subsection (b)(2) is intended to apply only to the use of a computer or an interactive computer service to communicate directly with a minor or with a person who exercises custody. or coerce a minor to engage in prohibited sexual conduct. November 1. Abusive Sexual Contact or Attempt to Commit Abusive Sexual Contact (a) Base Offense Level: (1) 20.3. 2000 (see Appendix C. Application of Subsection (b)(2). care. but if the resulting offense level is less than 22. §2A3.C. § 2242. § 2241(a) or (b). amendment 615). amendment 94).4. or supervisory control of the defendant.S. care.November 1. or 12. November 1. induce.3 (Abuse of Position of Trust or Use of Special Skill).—Do not apply §3B1. increase by 2 levels. Inapplicability of §3B1. increase by 2 levels. If the offense involved the knowing misrepresentation of a participant’s identity to persuade. or coerce a minor to engage in prohibited sexual conduct. entice. increase by 2 levels. increase by 4 levels.S. 1987. 1995 (see Appendix C. entice. If a computer or an interactive computer service was used to persuade. November 1. 2001 (see Appendix C. if the offense involved conduct described in 18 U. induce.4 3. induce. 2007 (see Appendix C. 2009 GUIDELINES MANUAL §2A3. amendment 511). Amended effective November 1. increase by 2 levels. amendment 664). November 1. If the victim was in the custody. or supervisory control of the minor.

§ 2242" is: (A) engaging in. For additional statutory provision(s). Attempt to Commit Criminal Sexual Abuse). intoxicant. apply §2A3. 2.—For purposes of subsection (a)(1). serious bodily injury. whether fictitious or not.1 (Aggravating Role). a drug.C. § 1030(e)(1). Commentary Statutory Provision: 18 U.S. see Appendix A (Statutory Index).S. who a law enforcement officer represented to a participant (i) had not attained the age of 18 years.C. § 2241 or § 2242).—For purposes of subsection (a)(2).1 (Criminal Sexual Abuse. § 2241(a) or (b)" is engaging in. (C) rendering the victim unconscious. "Prohibited sexual conduct" has the meaning given that term in Application Note 1 of the Commentary to §2A3.C.§2A3.S. if the resulting offense level is greater than that determined above. "Interactive computer service" has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U. § 2243(a)). "Participant" has the meaning given that term in Application Note 1 of the Commentary to §3B1. and (ii) could be provided for the purposes of engaging in sexually explicit conduct. or without the knowledge or permission of the victim. or by another person by: (A) using force against the victim. Attempt to Commit Criminal Sexual Abuse). 2009 criminal sexual abuse (as defined in 18 U.S. or other similar substance and thereby substantially impairing the ability of the victim to appraise or control conduct.2 (Criminal Sexual Abuse of a Minor Under the Age of Sixteen Years (Statutory Rape) or Attempt to Commit Such Acts).4 GUIDELINES M ANUAL November 1. or kidnapping.S. or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years. or by another person by threatening or placing the victim in fear (other than by threatening or placing the victim in fear that any person will be subjected to death. apply §2A3. or (B) – 66 – 3.S. § 230(f)(2)).1 (Criminal Sexual Abuse. (B) threatening or placing the victim in fear that any person will be subjected to death. Application of Subsection (a)(1). or (D) administering by force or threat of force. "conduct described in 18 U. (B) an individual. or causing sexual contact with. Definitions. Application Notes: 1. "conduct described in 18 U. "Minor" means (A) an individual who had not attained the age of 18 years. .C.—For purposes of this guideline: "Computer" has the meaning given that term in 18 U. or kidnapping).C. (2) If the offense involved criminal sexual abuse of a minor or attempt to commit criminal sexual abuse of a minor (as defined in 18 U.C. serious bodily injury.C.S. Application of Subsection (a)(2). § 2244. or causing sexual contact with.

without such intent. entice.— (A) Custody. November 1. 2007 (see Appendix C. or communicating unwillingness to engage in. Accordingly. Background: This section covers abusive sexual contact not amounting to criminal sexual abuse (criminal sexual abuse is covered under §§2A3. 1992 (see Appendix C. November 1.3). November 1. the court should look to the actual relationship that existed between the defendant and the victim and not simply to the legal status of the defendant-victim relationship. 1991 (see Appendix C. entice. Subsection (b)(5) is intended to apply only to the use of a computer or an interactive computer service to communicate directly with a minor or with a person who exercises custody.—The enhancement in subsection (b)(4) applies in cases involving the misrepresentation of a participant’s identity to persuade. 6. or supervisory control of the minor. age. 2000 (see Appendix C. amendment 444). §2A3.5. the enhancement in subsection (b)(4) would not apply to a misrepresentation made by a participant to an airline representative in the course of making travel arrangements for the minor. November 1. induce. November 1. amendment 664). would not be a sufficient basis for application of the enhancement. 2001 (see Appendix C. 2004 (see Appendix C. or status. 1989 (see Appendix C. or by another person who is incapable of appraising the nature of the conduct or physically incapable of declining participation in.November 1. care.5 engaging in. The misrepresentation to which the enhancement in subsection (b)(4) may apply includes misrepresentation of a participant’s name. Subsection (b)(4) is intended to apply only to misrepresentations made directly to a minor or to a person who exercises custody. In determining whether to apply this enhancement. Accordingly. Historical Note: Effective November 1. Failure to Register as a Sex Offender (a) Base Offense Level (Apply the greatest): – 67 – .—If the enhancement in subsection (b)(3) applies. or Supervisory Control.—Subsection (b)(3) is intended to have broad application and is to be applied whenever the victim is entrusted to the defendant. care. amendment 511). November 1.3 (Abuse of Position of Trust or Use of Special Skill). or other temporary caretakers are among those who would be subject to this enhancement. amendments 701 and 711). or coerce a minor to engage in prohibited sexual conduct. entice. use of a computer screen name. teachers. or coerce a minor to engage in prohibited sexual conduct. amendment 392). (B) 5. amendment 592). day care providers. Inapplicability of Chapter Three Adjustment. the sexual act.—Subsection (b)(5) provides an enhancement if a computer or an interactive computer service was used to persuade. induce. induce. Misrepresentation of a Participant’s Identity. For example. babysitters. gender. as long as the misrepresentation was made with the intent to persuade. Application of Subsection (b)(5). 4. amendment 95). amendment 615). November 1. or coerce a minor to engage in prohibited sexual conduct.1-3. occupation. or causing sexual contact with. 1995 (see Appendix C. Amended effective November 1. 2009 GUIDELINES MANUAL §2A3. do not apply §3B1. or supervisory control of the minor. 1987. Application of Subsection (b)(3). whether temporarily or permanently. Care. Alternative base offense levels are provided to take account of the different means used to commit the offense.

14. 2009 16. Application of Subsection (b)(2). while in a failure to register status.S. (B) an individual. the defendant committed— (A) a sex offense against someone other than a minor. § 2250(a). Specific Offense Characteristics (1) (Apply the greatest): If. (3) and (4). "Tier II offender".S. "Tier I offender". (B) (C) (2) If the defendant voluntarily (A) corrected the failure to register. a felony offense against a minor not otherwise covered by subdivision (C). "Sex offense" has the meaning given that term in 42 U.5 (1) (2) (3) (b) GUIDELINES M ANUAL November 1. whether fictitious or not. who a law enforcement officer represented to a participant (i) had not attained the age of 18 years. the defendant’s voluntary attempt to register or to correct the failure to register must have occurred prior to the time the – 68 – .C.§2A3. if the defendant was required to register as a Tier II offender. increase by 8 levels. or a sex offense against a minor. and (ii) could be provided for the purposes of engaging in sexually explicit conduct.—In order for subsection (b)(2) to apply. or (B) attempted to register but was prevented from registering by uncontrollable circumstances and the defendant did not contribute to the creation of those circumstances. § 16911(2). Definitions. respectively. Commentary Statutory Provision: 18 U. if the defendant was required to register as a Tier I offender. if the defendant was required to register as a Tier III offender. or 12. Application Notes: 1.—For purposes of this guideline: "Minor" means (A) an individual who had not attained the age of 18 years.C. increase by 6 levels. decrease by 3 levels. increase by 6 levels. § 16911(5). or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years.S. and "Tier III offender" have the meaning given those terms in 42 U.— (A) In General.C. 2.

2009 GUIDELINES MANUAL §2A3.S. (b) Chapters Three (Adjustments) and Four (Criminal History and Criminal Livelihood) shall not apply to any count of conviction covered by this guideline.S. 2260A. the guideline sentence is the term of imprisonment required by statute.1 (Procedure for Determining Offense Level on Multiple Counts) and 5G1. – 69 – . § 2250(c). The statute also requires a sentence to be imposed consecutively to any sentence imposed for a conviction under 18 U.C. Inapplicability of Chapters Three and Four. In General.2 (Sentencing on Multiple Counts of Conviction).C.November 1. Commentary Statutory Provisions: 18 U. provides a term of imprisonment of 10 years that is required to be imposed consecutively to any sentence imposed for an offense enumerated under that section. (B) Interaction with Subsection (b)(1). Aggravated Offenses Relating to Registration as a Sex Offender If the defendant was convicted under— (a) 18 U.S. Historical Note: Effective November 1.—Do not apply Chapters Three (Adjustments) and Four (Criminal History and Criminal Livelihood) to any offense sentenced under this guideline. See §§3D1.S. §2A3.—Do not apply subsection (b)(2) if subsection (b)(1) also applies. United States Code. provides a mandatory minimum term of five years’ imprisonment and a statutory maximum term of 30 years’ imprisonment.—Section 2250(c) of title 18.6.C. United States Code. § 2250(a). Such offenses are excluded from application of those chapters because the guideline sentence for each offense is determined only by the relevant statute.C. §§ 2250(c). 2007 (see Appendix C. do not apply any specific offense characteristic that is based on the same conduct as the conduct comprising the conviction under 18 U. Application Notes: 1.C. the guideline sentence is the minimum term of imprisonment required by statute. amendments 701 and 711). or 18 U.6 defendant knew or reasonably should have known a jurisdiction had detected the failure to register.S. Section 2260A of title 18. § 2260A.—If a sentence under this guideline is imposed in conjunction with a sentence for an underlying offense. 3. § 2250(c) or § 2260A. 2. Inapplicability of Chapter Two Enhancement.

or in connection with. (A) If the victim was not released before thirty days had elapsed.6 4. § 2250(c) is an upward departure from the guideline sentence. another offense or escape therefrom. OR UNLAWFUL RESTRAINT §2A4. If the victim is a minor and. Unlawful Restraint (a) (b) Base Offense Level: 32 Specific Offense Characteristics (1) If a ransom demand or a demand upon government was made. or (C) if the degree of injury is between that specified in subdivisions (A) and (B). (B) if the victim sustained serious bodily injury. abducted. increase by 6 levels. A departure may be warranted. increase to -(A) the offense level from the Chapter Two offense guideline – 70 – (7) . GUIDELINES M ANUAL November 1. increase by 3 levels. increase by 3 levels. 2009 Upward Departure. increase by 1 level. (A) If the victim sustained permanent or life-threatening bodily injury. a sentence above the minimum term required by 18 U. for example. If a dangerous weapon was used. KIDNAPPING.§2A3. increase by 2 levels.C. abduction. If the victim was kidnapped. increase by 4 levels. increase by 6 levels. Kidnapping.S. amendment 701). ABDUCTION. Historical Note: Effective November 1. was placed in the care or custody of another person who had no legal right to such care or custody of the victim.1. Abduction. * * * * * 4. or unlawful restraint. If the victim was not released before seven days had elapsed. (2) (3) (4) (B) (5) (6) If the victim was sexually exploited.—In a case in which the guideline sentence is determined under subsection (a). in a case involving a sex offense committed against a minor or if the offense resulted in serious bodily injury to a minor. increase by 2 levels. 2007 (see Appendix C. in exchange for money or other consideration. or unlawfully restrained during the commission of. or if another offense was committed during the kidnapping. increase by 2 levels.

S. if an offense involved conspiracy to kidnap for the purpose of committing murder. subsection (b)(7) would reference first degree murder (resulting in an offense level of 43. 3. or a "firearm" or "dangerous weapon" was "otherwise used" (as defined in the Commentary to §1B1. For additional statutory provision(s).C. if the resulting offense level is greater than that determined above. for example. Therefore. 351(b). (c) Cross Reference (1) If the victim was killed under circumstances that would constitute murder under 18 U. 1201. "Sexually exploited" includes offenses set forth in 18 U.1 (Application Instructions).1 applicable to that other offense if such offense guideline includes an adjustment for kidnapping. Similarly.C. or otherwise takes such conduct into account. 2. "A dangerous weapon was used" means that a firearm was discharged. for example. However.C. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States.1 (Attempt. "serious bodily injury" means conduct other than criminal sexual abuse. or (B) 4 plus the offense level from the offense guideline applicable to that other offense. the offense referenced under subsection (b)(7) would be the offense of first degree murder.S. for purposes of this guideline. attempt. 4. 2009 GUIDELINES MANUAL §2A4. apply §2A1.November 1. abduction. or Conspiracy) requires that the court apply any adjustment that can be determined with reasonable certainty. §2X1. §§ 115(b)(2). 2251. or unlawful restraint. or solicitation to kidnap. 2340A. §§ 2241-2244. Application Notes: 1.1 (First Degree Murder). but in no event greater than level 43. 1203. see Appendix A (Statutory Index). in any other case.S. subject to a possible 3-level reduction under §2X1. For purposes of this guideline— Definitions of "serious bodily injury" and "permanent or life-threatening bodily injury" are found in the Commentary to §1B1. Solicitation. which is taken into account in the specific offense characteristic under subsection (b)(5).1 (Application Instructions)). 1751(b). and 24212423. (d).1(b)). if an offense involved a kidnapping during which a participant attempted to murder the victim under circumstances that would have constituted first degree murder had death occurred. In the case of a conspiracy. Commentary Statutory Provisions: 18 U. – 71 – .

amendment 637). sexual assault). amendment 545). Historical Note: Effective November 1. state.§2A4. effective May 30. §2A4. Demanding or Receiving Ransom Money (a) (b) Base Offense Level: 23 Cross Reference (1) If the defendant was a participant in the kidnapping offense. 1992 (see Appendix C. November 1. The adjustment recognizes the increased suffering involved in lengthy kidnappings and provides an incentive to release the victim. November 1.C. amendment 363).S. implement the directive to the Commission in section 104 of Public Law 108–21. 1991 (see Appendix C. Commentary Statutory Provisions: 18 U. amendment 650).2. 2003 (see Appendix C. requiring that ransom money be received.1 GUIDELINES M ANUAL November 1. 1987. 1989 (see Appendix C. Background: This section specifically includes conduct prohibited by 18 U. 1993 (see Appendix C. §§ 876. – 72 – . 1997 (see Appendix C. For additional statutory provision(s). and the deletion of subsection (b)(4)(C). amendment 478). An enhancement is provided when the offense is committed for ransom (subsection (b)(1)) or involves another federal. May 30. November 1. 2003 (see Appendix C. Section 401 of Public Law 101-647 amended 18 U. November 1. see Appendix A (Statutory Index). possessed.S. but need not have been convicted.1 (Kidnapping. The guideline contains an adjustment for the length of time that the victim was detained. 877. Application Note: 1. amendment 651). amendment 96). Abduction. October 27. Unlawful Restraint). amendment 445). § 1202. and kidnapping for ransom or political demand. or disposed of with knowledge of its criminal origins.C. Subsections (a) and (b)(5). additional specific offense characteristics have been provided. Where the guidelines did not already take into account the conduct identified by the Act.C.S. kidnapping that occurs as part of or to facilitate the commission of another offense (often. A "participant" is a person who is criminally responsible for the commission of the offense. November 1. § 1201 to require that courts take into account certain specific offense characteristics in cases involving a victim under eighteen years of age and directed the Commission to include those specific offense characteristics within the guidelines. apply §2A4. 2009 Background: Federal kidnapping cases generally encompass three categories of conduct: limited duration kidnapping where the victim is released unharmed. Amended effective November 1. 2003. or local offense that results in a greater offense level (subsections (b)(7) and (c)(1)). 1202. 2002 (see Appendix C.

or by any other form of intimidation. 1987. if the offense involved recklessly endangering the safety of: (A) an airport or an aircraft. (n)). see Appendix A (Statutory Index). or (B) a mass transportation facility or a mass transportation vehicle. or threat of force or violence.C. or (B) a mass transportation facility or a mass transportation vehicle. * * * * * 5. § 46502(b). §§ 876-877. – 73 – (2) . Amended effective November 1. 49 U.1. AIR PIRACY AND OFFENSES AGAINST MASS TRANSPORTATION SYSTEMS Historical Note: Effective November 1. This section additionally includes extortionate demands through the use of the United States Postal Service. 2002 (see Appendix C. For additional statutory provision(s). 1995 (see Appendix C. Background: This section covers aircraft piracy both within the special aircraft jurisdiction of the United States.S. Operation. amendment 479). 1987.1.November 1.2. Seizure of control of an aircraft may be by force or violence. 1993 (see Appendix C.S. Historical Note: Effective November 1. The presence of a weapon is assumed in the base offense level.C.S.2 The actual demand for ransom under these circumstances is reflected in §2A4.C. 49 U. Interference with Flight Crew Member or Flight Attendant. if the offense involved intentionally endangering the safety of: (A) an airport or an aircraft. increase by 5 levels. Navigation. amendment 534). Aircraft Piracy or Attempted Aircraft Piracy (a) (b) Base Offense Level: 38 Specific Offense Characteristic (1) If death resulted. 1987. behavior proscribed by 18 U. Historical Note: Effective November 1. §2A5.S. or Maintenance of Mass Transportation Vehicle (a) Base Offense Level (Apply the greatest): (1) 30. § 46502(a). § 46502(a). amendment 637). § 1472 (i). Commentary Statutory Provisions: 49 U. Interference with Dispatch. (b) (formerly 49 U. Amended effective November 1.C.S. 2009 GUIDELINES MANUAL §2A5. 18. §2A5. Amended effective November 1.C. and aircraft piracy outside that jurisdiction when the defendant is later found in the United States.

nuclear material.C. and Other Weapons of Mass Destruction).§2A5. 1989 (see Appendix C. or delivery system. § 1992(a)(1). 46503. §§2A2. (a)(4). "nuclear byproduct material". Historical Note: Effective November 1. amendment 480). November 1. § 1992(d)(7). Definitions. or (iii) a dangerous weapon was brandished or its use was threatened. Application Note: 1. Biological. and Chemical Weapons. "chemical weapon". 1987. 1993 (see Appendix C. or a threat to use (A) a nuclear weapon. amendment 534). 2002 (see Appendix C. amendment 637). (a)(6). (a)(5). (2) Commentary Statutory Provisions: 18 U. If the resulting offense level is less than level 24.S. (C) a biological agent. Amended effective November 1.C.—For purposes of this guideline: "Biological agent". 2009 if an assault occurred. amendment 699). apply §2M6. "Brandished".S. "toxin". (c) Cross References (1) If death resulted.1-2A2. Part A. and (B)(i) a firearm was discharged. 49 U. (ii) a dangerous weapon was otherwise used. increase by 3 levels. amendments 97 and 303). (4) (b) Specific Offense Characteristic (1) If (A) subsection (a)(1) or (a)(2) applies. (j)). increase by 5 levels. the offense level from the most analogous assault guideline. if the resulting offense level is greater than that determined above. or 9. November 1. apply the most analogous guideline from Chapter Two. If the offense involved possession of. and Chemical Weapons. 46504 (formerly 49 U. see Appendix A (Statutory Index). 2007 (see Appendix C. Biological.1 (Nuclear. toxin. November 1.1 (Application Instructions). if the resulting offense level is greater than that determined above. increase by 4 levels. § 1472(c).S.1 (Nuclear.2 (3) GUIDELINES M ANUAL November 1. and "otherwise used" have the meaning given those terms in Application Note 1 of the Commentary to §1B1. – 74 – .4.S. "firearm". and "weapon of mass destruction" have the meaning given those terms in Application Note 1 of the Commentary to §2M6. "Mass transportation" has the meaning given that term in 18 U. November 1. or nuclear byproduct material. §§ 46308. For additional statutory provision(s). (B) a chemical weapon. increase to level 24.C. "dangerous weapon". Subpart 1 (Homicide).C. or (D) a weapon of mass destruction. and Other Weapons of Mass Destruction). "nuclear material". 1995 (see Appendix C.

(D). or (B) the defendant is convicted under 18 U. 1995 (see Appendix C. Commentary Statutory Provision: 49 U. If (A) the offense involved more than two threats.1. Hoaxes. amendment 65). § 223(a)(1)(C).S. AND DOMESTIC VIOLENCE Historical Note: Effective November 1.S.1 §2A5. November 1. 1997 (see Appendix C. If the conduct intentionally or recklessly endangered the safety of the aircraft or passengers. increase by 6 levels. § 1521 and the offense involved more than two false liens or encumbrances. if the defendant is convicted of an offense under 47 U. 1987. § 46506 of which the defendant is convicted. HOAXES. November 1. Amended effective November 1. Committing Certain Crimes Aboard Aircraft (a) Base Offense Level: The offense level applicable to the underlying offense. (2) – 75 – . or 6. amendment 686). 1988 (see Appendix C.S. Historical Note: Effective October 15. amendment 534).C. "Underlying offense" refers to the offense listed in 49 U.C. an upward departure may be warranted. False Liens (a) Base Offense Level: (1) (2) 12. (b) Specific Offense Characteristics (1) If the offense involved any conduct evidencing an intent to carry out such threat. § 46506 (formerly 49 U.3. or (E) that did not involve a threat to injure a person or property. Threatening or Harassing Communications.November 1. amendment 98). 2009 GUIDELINES MANUAL §2A6. §2A6.S. 2. § 1472(k)(1)).C.S.C. amendment 549). Application Notes: 1. increase by 2 levels. 1989 (see Appendix C. Amended effective November 1. STALKING. * * * * * 6. THREATENING OR HARASSING COMMUNICATIONS. 2006 (see Appendix C.C.

. if the resulting offense level is greater than that determined under this guideline. (b)(2). 2291(e). (2).S.C. §§ 32(c). Commentary Statutory Provisions: 18 U. and (5) do not apply. § 223(a)(1)(C)-(E).S. as defined in 18 U.C. governmental. (B) made a public threatening communication. then for purposes of determining whether subsections (b)(1). conduct that occurred prior to the offense must be substantially and directly connected to the offense.2 (Official Victim). apply §2M6. or (B) a substantial expenditure of funds to clean up. 35(b).C.C. Part D (Multiple Counts). see Appendix A (Statutory Index). 877. § 1521. 3. 879. decontaminate. 1038. increase by 2 levels. the court shall consider only those prior acts of threatening the victim that have a substantial and direct connection to the offense. 49 U. and (B) the offense involved a single instance evidencing little or no deliberation.S. For additional statutory provision(s). If (A) subsection (a)(2) and subdivisions (1).C. and (b)(3) apply.S. 876. the court shall consider both conduct that occurred prior to the offense and conduct that occurred during the offense. (4). under the facts of the case taken as a whole. if the defendant engaged in several acts of mailing threatening letters to the same victim over a period of years (including acts that occurred prior to the offense). or otherwise respond to the offense.— In determining whether subsections (b)(1). and (b)(3) apply.1 (Weapons of Mass Destruction). 47 U. 871. apply §3A1. (a)(10). (b)(2).§2A6.S. 2009 If the offense involved the violation of a court protection order.C. § 115. increase by 2 levels. § 115. Grouping. 1992(a)(9). however. (C).1 (3) GUIDELINES M ANUAL November 1. 2292.—For purposes of Chapter Three. decrease by 4 levels. and (D).C.S. or business functions or services. Scope of Conduct to Be Considered. 878(a). Application Notes: 1. 1521. (3). multiple counts involving making a threatening or harassing communication to the same victim are grouped – 76 – 2. and (C) knew or should have known that the public threatening communication created a substantial risk of inciting others to violate 18 U. If the defendant (A) is convicted under 18 U. (4) (5) (6) (c) Cross Reference (1) If the offense involved any conduct evidencing an intent to carry out a threat to use a weapon of mass destruction. § 2332a(c)(2)(B).—If the defendant is convicted under 18 U. § 46507. Applicability of Chapter Three Adjustments. For example. increase by 4 levels. 2332b(a)(2). 2291(a)(8).S. If the offense resulted in (A) substantial disruption of public.

if the resulting offense level is greater than that determined above.November 1. §2A6. or threatened use. amendment 729).—If the offense involved (i) substantially more than two threatening communications to the same victim.— (A) In General. an upward departure may be warranted. amendment 480). November 1.2 together under §3D1. 2002 (see Appendix C. (C) possession. (B) Background: These statutes cover a wide range of conduct. Historical Note: Effective November 1. amendment 699). threatening. the seriousness of which depends upon the defendant’s intent and the likelihood that the defendant would carry out the threat.—The Commission recognizes that offenses covered by this guideline may include a particularly wide range of conduct and that it is not possible to include all of the potentially relevant circumstances in the offense level. Multiple Threats. Factors not incorporated in the guideline may be considered by the court in determining whether a departure from the guidelines is warranted. Subsection (b)(5) implements. November 1. November 1. (iii) substantially more than two false liens or encumbrances against the real or personal property of the same victim. Part K (Departures). (B) bodily injury. 1997 (see Appendix C. Pecuniary Harm. amendment 549). amendment 637). of a dangerous weapon. 2007 (see Appendix C. 2008 (see Appendix C. 1993 (see Appendix C. in a broader form. See Chapter Five. or (D) a pattern of activity involving stalking. apply the offense guideline from Chapter Two. (ii) a prolonged period of making harassing communications to the same victim.2. The specific offense characteristics are intended to distinguish such cases. or (v) substantial pecuniary harm to a victim. If the offense involved more than one of these aggravating factors. increase by 2 levels. False Liens or Encumbrances. 2009 (see Appendix C. amendment 686). Public Law 110–177. 4. (c) Cross Reference (1) If the offense involved the commission of another criminal offense. harassing.2 (Groups of Closely Related Counts). 2009 GUIDELINES MANUAL §2A6. increase by 4 levels. November 1. 1987. Part A (Offenses Against the Person) most applicable to that other criminal offense. November 1. Stalking or Domestic Violence (a) (b) Base Offense Level: 18 Specific Offense Characteristic (1) If the offense involved one of the following aggravating factors: (A) the violation of a court protection order. (iv) multiple victims. or Victims.2. amendment 718). the directive to the Commission in section 209 of the Court Security Improvement Act of 2007. – 77 – . or assaulting the same victim. Departure Provisions. Amended effective November 1. 2006 (see Appendix C. Multiple counts involving different victims are not to be grouped under §3D1. November 1.

the court shall consider.C. then for purposes of determining whether subsection (b)(1)(D) applies. See 18 U. that person or an immediate family member of that person. threatening. if a defendant engaged in several acts of stalking the same victim over a period of years (including acts that occurred prior to the offense). or as a result of. harassing.§2A6. because the more serious conduct will be covered by another offense guideline from Chapter Two. "Pattern of activity involving stalking. a single instance of stalking accompanied by a separate instance of threatening. harassing. Part A. considering only those prior acts of stalking the victim that have a substantial and direct connection to the offense. § 115(c)(2). "Immediate family member" (A) has the meaning given that term in 18 U. if the resulting offense level is greater.S. For example. under the totality of the circumstances. and (B) includes a spouse or intimate partner.2 (Aggravated Assault) most likely would apply pursuant to subsection (c) if the offense involved assaultive conduct in which injury more serious than bodily injury occurred or if a dangerous weapon was used rather than merely possessed. or (B) using the mail or any facility of interstate or foreign commerce to engage in a course of conduct that places that person in reasonable fear of the death of.C. injure. §2A2. harassing. For purposes of this guideline: "Bodily injury" and "dangerous weapon" are defined in the Commentary to §1B1. Part A (Criminal History). or assaulting the same victim constitutes a pattern of activity for purposes of this guideline. any conduct that occurred prior to or during the offense. placing the person in reasonable fear of death or serious bodily injury to that person or an immediate family member of that person. or assaulting the same victim. For example. such travel.C. Application Notes: 1. or serious bodily injury to. whether or not such conduct resulted in a conviction.S.C.S. 2009 Commentary Statutory Provisions: 18 U. For example. the cross reference in subsection (c) most likely will apply. "Course of conduct" and "spouse or intimate partner" have the meaning given those terms in 18 U. conduct that occurred prior to the offense must be substantially and directly connected to the offense. If the offense involved aggravating factors more serious than the factors listed in subsection (b)(1). the court shall look to the totality of the circumstances. – 78 – . harass. §§ 2261-2262. or intimidate another person and. 2. § 2261A. Prior convictions taken into account under subsection (b)(1)(D) are also counted for purposes of determining criminal history points pursuant to Chapter Four.2 GUIDELINES M ANUAL November 1. "Stalking" means (A) traveling with the intent to kill. Subsection (b)(1) provides for a two-level or four-level enhancement based on the degree to which the offense involved aggravating factors listed in that subsection. or assaulting the same victim" means any combination of two or more separate instances of stalking. in the course of. In determining whether subsection (b)(1)(D) applies. 3. however. respectively. threatening. § 2266(2) and (7).S.1 (Application Instructions).

§ 2261. 2009 GUIDELINES MANUAL §2A6.2 would preclude grouping of the counts under that offense guideline.2 (Groups of Closely Related Counts) would require grouping of those counts under that offense guideline. multiple counts involving stalking. November 1. amendment 549). Similarly.S.1 (Threatening or Harassing Communications). 5. § 2262 and the counts are cross referenced to §2A2. Multiple counts that are cross referenced to another offense guideline pursuant to subsection (c) are to be grouped together if §3D1.C. an upward departure may be warranted.November 1.2 and no other provision of §3D1.2 (Aggravated Assault). Multiple counts involving different victims are not to be grouped under §3D1. For example.2 (Groups of Closely Related Counts).C.S. threatening. amendment 616). 1997 (see Appendix C. For purposes of Chapter Three.2 would likely apply to require grouping.1 specifically requires grouping. if the defendant is convicted of multiple counts of threatening an ex-spouse in violation of a court protection order under 18 U. Historical Note: Effective November 1. For example. For example.2 (Groups of Closely Related Counts).C. or assaulting the same victim) and recognizes that the stalking and interstate domestic violence counts are sufficiently related to warrant grouping. If the defendant received an enhancement under subsection (b)(1) but that enhancement does not adequately reflect the extent or seriousness of the conduct involved. In contrast. the counts would group together because Application Note 3 of §2A6. § 2262 and the counts are cross referenced to §2A6. if the defendant is convicted of two counts of stalking the defendant’s ex-spouse under 18 U. 2009 (see Appendix C. amendment 737). if the defendant is convicted of multiple counts of assaulting the ex-spouse in violation of a court protection order under 18 U. Amended effective November 1. harassing.S. multiple counts cross referenced pursuant to subsection (c) are not to be grouped together if §3D1. Part D (Multiple Counts).2 4.C. an upward departure may be warranted if the defendant stalked the victim on many occasions over a prolonged period of time.2(d) specifically precludes grouping of counts covered by §2A2.S. 2001 (see Appendix C. or harassing the same victim are grouped together (and with counts of other offenses involving the same victim that are covered by this guideline) under §3D1. § 2261A and one count of interstate domestic violence involving an assault of the ex-spouse under 18 U. threatening. the stalking counts would be grouped together with the interstate domestic violence count. This grouping procedure avoids unwarranted "double counting" with the enhancement in subsection (b)(1)(D) (for multiple acts of stalking. – 79 – . the counts probably would not group together inasmuch as §3D1.

and (B) that offense of conviction has a statutory maximum term of imprisonment of 20 years or more. These guidelines apply to offenses prosecuted under a wide variety of federal statutes. (Arson is dealt with separately in Chapter Two.000 More than $2.000 More than $1. Larceny. 2001 (see Appendix C. forgery. and simple property damage or destruction.000 – 80 – Increase in Level no increase add 2 add 4 add 6 add 8 add 10 add 12 add 14 add 16 add 18 . §2B1.000 More than $10. or 6. AND OFFENSES INVOLVING FRAUD OR DECEIT Introductory Commentary These sections address basic forms of property offenses: theft. RECEIPT OF STOLEN PROPERTY. insider trading.000 More than $400.000 More than $30.000 More than $200. Embezzlement. 2009 PART B . EMBEZZLEMENT. Property Damage or Destruction. transactions in stolen goods. November 1. 1987. Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States (a) Base Offense Level: (1) 7. 1989 (see Appendix C. Historical Note: Effective November 1. increase the offense level as follows: Loss (Apply the Greatest) (A) (B) (C) (D) (E) (F) (G) (H) (I) (J) $5. Part K (Offenses Involving Public Safety)). embezzlement. amendment 617). Amended effective November 1.000 or less More than $5.000 More than $120.1.BASIC ECONOMIC OFFENSES 1.000. Forgery. otherwise.000 More than $70. amendment 303).000. Offenses Involving Stolen Property. as well as offenses that arise under the Assimilative Crimes Act. and Other Forms of Theft.500.1 GUIDELINES M ANUAL November 1. (2) (b) Specific Offense Characteristics (1) If the loss exceeded $5. fraud. THEFT. counterfeiting (other than offenses involving altered or counterfeit bearer obligations of the United States). if (A) the defendant was convicted of an offense referenced to this guideline.§2B1. Fraud and Deceit. PROPERTY DESTRUCTION.

and (B) the offense involved obtaining electronic mail addresses through improper means. foreign instrumentality. If the offense involved misappropriation of a trade secret and the defendant knew or intended that the offense would benefit a foreign government. or (D) a misrepresentation to a consumer in connection with obtaining. increase by 2 levels.000 More than $200. (B) a misrepresentation or other fraudulent action during the course of a bankruptcy proceeding. and the defendant was a person in the business of receiving and selling stolen property. increase by 2 levels. religious. increase by 4 levels.000. (B) (C) (3) If the offense involved a theft from the person of another.000 More than $100. or participated in relocating. § 1037.November 1.000 More than $50.000. If the offense involved (A) a misrepresentation that the defendant was acting on behalf of a charitable. injunction. (K) (L) (M) (N) (O) (P) (2) More than $7. providing. or involved 250 or more victims. or political organization. increase to level 10. If (A) the defendant was convicted of an offense under 18 U.000.S.000. 2009 GUIDELINES MANUAL §2B1.000 (Apply the greatest) If the offense— (A) (i) involved 10 or more victims. increase by 2 levels. involved 50 or more victims.000.000 More than $400. decree. increase by 2 levels. If (A) the defendant relocated.000.000 More than $20. property from a national cemetery or veterans’ memorial. (C) a violation of any prior. damage to. increase by 2 levels.C. or (ii) was committed through mass-marketing. or foreign agent. or a government agency. or furnishing financial assistance for an institution of higher education. increase by 2 levels. If the offense involved theft of.1 add 20 add 22 add 24 add 26 add 28 add 30. educational. destruction of. a fraudulent scheme to another jurisdiction to evade law enforcement or regulatory – 81 – (4) (5) (6) (7) (8) (9) . increase by 2 levels. increase by 6 levels. specific judicial or administrative order. or trafficking in. or process not addressed elsewhere in the guidelines. If the offense involved receiving stolen property. If the resulting offense level is less than level 10.

or (iii) substantially endangered the solvency or financial security of 100 or more victims. increase to level 12. or obtained by the use of.000. increase by 2 levels. or (ii) authentication feature. or (B) possession of a dangerous weapon (including a firearm) in connection with the offense. If the offense involved (A) the conscious or reckless risk of death or serious bodily injury. (10) If the offense involved (A) the possession or use of any (i) devicemaking equipment. (B) a substantial part of a fraudulent scheme was committed from outside the United States. increase to level 14. increase by 4 levels. increase by 2 levels. increase by 2 levels. (B) the production or trafficking of any (i) unauthorized access device or counterfeit access device. If the resulting offense level is less than level 12. If the resulting offense level determined under subdivision (A) or (B) is less than level 24. or (B) goods or chattels that are part of a cargo shipment. (ii) substantially endangered the solvency or financial security of an organization that. (Apply the greater) If— (A) the defendant derived more than $1. increase to level 24. – 82 – (11) (12) (13) (14) (B) (C) (D) . increase by 2 levels. If the offense involved conduct described in 18 U. If the offense involved an organized scheme to steal or to receive stolen (A) vehicles or vehicle parts. § 1040. or the offense (i) substantially jeopardized the safety and soundness of a financial institution. or (C) the offense otherwise involved sophisticated means. except as provided in subdivision (D). or (ii) the possession of 5 or more means of identification that unlawfully were produced from. increase by 2 levels. increase to level 14. at any time during the offense. The cumulative adjustments from application of both subsections (b)(2) and (b)(14)(B) shall not exceed 8 levels. 2009 officials.000 in gross receipts from one or more financial institutions as a result of the offense. increase to level 12. or (ii) authentication feature. If the resulting offense level is less than level 14. If the resulting offense level is less than level 12. If the resulting offense level is less than level 12.000 or more employees. or (C)(i) the unauthorized transfer or use of any means of identification unlawfully to produce or obtain any other means of identification. increase by 2 levels. or (II) had 1.C. another means of identification.§2B1. (I) was a publicly traded company.1 GUIDELINES M ANUAL November 1. If the resulting offense level is less than level 14.S. increase to level 12.

at the time of the offense. transported. increase by 6 levels. Importing.1 (15) If (A) the defendant was convicted of an offense under 18 U. apply §2D1.C. or (B) the offense involved the unauthorized public dissemination of personal information. §2D2. or (iii) a commodity pool operator. § 1030. and the offense level is less than level 24. or a violation of commodities law and.1 (Unlawful Possession. (B) increase by 4 levels. 18 U. (ii) a commodities trading advisor. increase to level 24. increase by 2 levels. 18 U. (ii) a registered broker or dealer.C. transmitted.November 1. Exporting. or a person associated with a broker or dealer. and the offense involved a computer system used to maintain or operate a critical infrastructure. the defendant was (i) an officer or a director of a futures commission merchant or an introducing broker. explosive material. and the offense caused a substantial disruption of a critical infrastructure. Possession.3 (Unlawful Receipt.C. or possessed was a firearm.S. §2K1. or controlled substance was taken. transferred.S. or a person associated with an investment adviser. (c) Cross References (1) If (A) a firearm. or controlled substance. and the offense involved an intent to obtain personal information. increase by 2 levels. (16) (ii) (iii) (B) If subdivision (A)(iii) applies. (17) If the offense involved— (A) a violation of securities law and. or Transportation of Explosive – 83 – . national defense.1 (Unlawful Manufacturing. Attempt or Conspiracy). or (iii) an investment adviser.S. or national security. or used by or for a government entity in furtherance of the administration of justice. explosive material. § 1030. Attempt or Conspiracy). 2009 GUIDELINES MANUAL §2B1.C. at the time of the offense. or Trafficking (Including Possession with Intent to Commit These Offenses). § 1030. destructive device. destructive device. increase by 4 levels.S. (A) (Apply the greatest) If the defendant was convicted of an offense under: (i) 18 U. or (B) the stolen property received. § 1030(a)(5)(A). the defendant was (i) an officer or a director of a publicly traded company. or the taking of any such item was an object of the offense.

"Equity securities" has the meaning given that term in section 3(a)(11) of the Securities Exchange Act of 1934 (15 U. credit union. 42 U.S. including destruction of mail. 6c. 18 U. 80b-6. 29 U. 19 U.C. 6h.4 (Arson. 553(a)(1).S. see Appendix A (Statutory Index). 13.S. (3) (4) Commentary Statutory Provisions: 7 U. or Transportation of Firearms or Ammunition. 510.C.C.C. or Destruction of. – 84 – .S.C. Prohibited Transactions Involving Firearms or Ammunition). 1702. trust company. 1341-1344. 6821. 1029. as appropriate. 285-289. is involved). § 1005. 1992(a)(1). 471-473. 30170. 2701. For additional statutory provision(s). 49 U. 1708. if the resulting offense level is greater than that determined above. 1348. 657. 6o. § 1011. 2009 Materials. 2291. § 1001. 664. "Financial institution" includes any institution described in 18 U. or Receipt of Cultural Heritage Resources). If the offense involved a cultural heritage resource. 1030(a)(4)-(5). 662. 1010-1014. 1040. any state or foreign bank. § 501(c). 2113(b). or Receipt of Cultural Heritage Resources). Prohibited Transactions Involving Explosive Materials). 1026.S. 641. 78ff.S. 1028. (2) If the offense involved arson.1 (Unlawful Receipt. 1644. 1016-1022. §§ 14915. § 656. Damage to. 6b. or Destruction of. § 78c(a)(11)). Transportation. Possession.S. 2282A. Transportation. or §2K2. or § 1343). Property Damage by Use of Explosives).§2B1. § 20. 1831.—For purposes of this guideline: "Cultural heritage resource" has the meaning given that term in Application Note 1 of the Commentary to §2B1. 77q. § 1341. 23.C.. 77x. 1037. (a)(5). 2332b(a)(1). Unlawful Sale.S.1 GUIDELINES M ANUAL November 1. fictitious. 60123(b). or fraudulent statements or representations generally (e. and (C) the conduct set forth in the count of conviction establishes an offense specifically covered by another guideline in Chapter Two (Offense Conduct). § 657. If (A) neither subdivision (1) nor (2) of this subsection applies.C. if the resulting offense level is greater than that determined above. 1703 (if vandalism or malicious mischief. Definitions. (B) the defendant was convicted under a statute proscribing false.g. 46317(a). Damage to. §§ 38. 659.S. 1369. Cultural Heritage Resources. § 2401f. 1025. 18 U. § 1342. Exchange. Purchase. § 1007. 1350. 2282B. Purchase. or § 1014. 1001-1008. 1832.5 (Theft of. 656. 15 U.S. Unlawful Sale. 78j. §§ 50. 1363. § 1006. 500. Exchange.5 (Theft of.C. apply §2B1. 225.C.C. or property damage by use of explosives. 2312-2317. apply that other guideline. 1361. 77e. 1031. §§ 6. apply §2K1. Application Notes: 1. Cultural Heritage Resources.

§ 1839(1) and (2). § 78o(d)).C. such as the theft of a purse from a shopping cart. "Foreign instrumentality" and "foreign agent" have the meaning given those terms in 18 U. of property that was being held by another person or was within arms’ reach. pension funds of large national and international organizations. union or employee pension fund. or (B) any individual who sustained bodily injury as a result of the offense. unions. or hospital insurance association. including e-mail. except that such means of identification shall be of an actual (i. or other benefits (e. other than the defendant or a person for whose conduct the defendant is accountable under §1B1. "National cemetery" means a cemetery (A) established under section 2400 of title 38. respectively.. including (A) medical records. and associations that undertake to provide pension. or required to be registered.1 insurance company. statue. or the Secretary of the Interior. whether or not insured by the federal government. without the use of force. or other monument described in 18 U. medical or hospitalization insurance) to large numbers of persons. plaque.S.S. any health. with the Securities and Exchange Commission.November 1. § 1369(a).g. or (B) under the jurisdiction of the Secretary of the Army. brokers and dealers registered. or (B) that is required to file reports under section 15(d) of the Securities Exchange Act of 1934 (15 U. 2009 GUIDELINES MANUAL §2B1. (E) financial records. "Publicly traded company" means an issuer (A) with a class of securities registered under section 12 of the Securities Exchange Act of 1934 (15 U. (D) private correspondence. "Victim" means (A) any person who sustained any part of the actual loss determined under subsection (b)(1).3 (Relevant Conduct).1 (Application Instructions). § 78l). Examples include pick-pocketing and non-forcible purse-snatching.C. medical. mutual fund. "Means of identification" has the meaning given that term in 18 U.C. disability.e. "Issuer" has the meaning given that term in section 3 of the Securities Exchange Act of 1934 (15 U. § 78c).g. or hospital insurance association. the Secretary of the Navy.S. (B) wills.. with the Commodity Futures Trading Commission. "Theft from the person of another" means theft.C. United States Code. § 1839(3)." primarily include large pension funds that serve many persons (e.S. "Union or employee pension fund" and "any health. and any similar entity. not fictitious) individual. "Firearm" and "destructive device" have the meaning given those terms in the Commentary to §1B1. (C) diaries. "Trade secret" has the meaning given that term in 18 U. investment company. (F) photographs of a sensitive or private nature.. the Secretary of the Air Force. savings (building and loan) association. "Personal information" means sensitive or private information involving an identifiable individual (including such information in the possession of a third party). or required to be registered. § 1028(d)(7).S.C.S.C. and corporations doing substantial interstate business). medical. or (G) similar information. futures commodity merchants and commodity pool operators registered. – 85 – .C. "Veterans’ memorial" means any structure.S.

loss is the greater of actual loss or intended loss.—For purposes of this guideline. or attempting to commit. "reasonably foreseeable pecuniary harm" means pecuniary harm that the defendant knew or.—For purposes of subsection (a)(1). or other non-economic harm. Accordingly. was a potential result of the offense. (B) (C) 3. including any increase in that maximum term under a statutory enhancement provision.— (A) "Referenced to this Guideline". an offense is "referenced to this guideline" if (i) this guideline is the applicable Chapter Two guideline determined under the provisions of §1B1.1 (Attempt. reasonably foreseeable pecuniary harm shall be considered to include the pecuniary harm specified for those cases as follows: – 86 – (ii) (iii) (iv) (v) .g. Reasonably Foreseeable Pecuniary Harm. societies. or an insurance fraud in which the claim exceeded the insured value). Definition of "Statutory Maximum Term of Imprisonment". (i) Actual Loss. as in a government sting operation.—This application note applies to the determination of loss under subsection (b)(1). Intended Loss.—For purposes of this guideline. Pecuniary Harm.. Solicitation. soliciting. solicitation. under the circumstances. corporations. associations. "statutory maximum term of imprisonment" means the maximum term of imprisonment authorized for the offense of conviction.—Subject to the exclusions in subdivision (D).2 (Applicable Guidelines) for the offense of conviction.—"Intended loss" (I) means the pecuniary harm that was intended to result from the offense. this guideline is the appropriate guideline for the offense the defendant was convicted of conspiring.—In the cases described in subdivisions (I) through (III). firms. the applicable base offense level is determined by the count of conviction that provides the highest statutory maximum term of imprisonment. harm to reputation. and joint stock companies. partnerships. and (II) includes intended pecuniary harm that would have been impossible or unlikely to occur (e. Application of Subsection (a)(1). pecuniary harm does not include emotional distress. or (ii) in the case of a conviction for conspiracy. Rules of Construction in Certain Cases.—In a case involving multiple counts sentenced under this guideline. Loss Under Subsection (b)(1). 2009 "Person" includes individuals. companies.—"Actual loss" means the reasonably foreseeable pecuniary harm that resulted from the offense.§2B1.1 GUIDELINES M ANUAL November 1. reasonably should have known. Base Offense Level Determination for Cases Involving Multiple Counts. or attempt to which §2X1. 2. (A) General Rule.—"Pecuniary harm" means harm that is monetary or that otherwise is readily measurable in money. or Conspiracy) applies.

§ 3742(e) and (f). the reasonably foreseeable pecuniary harm includes the reasonably foreseeable costs of making substitute transactions and handling or disposing of the product delivered. or.C. the court’s loss determination is entitled to appropriate deference. Estimation of Loss. (II) (III) (B) Gain. plus any increased costs to procure the product or service involved that was reasonably foreseeable. The sentencing judge is in a unique position to assess the evidence and estimate the loss based upon that evidence. and restoring the data. Offenses Under 18 U. including the cost of responding to an offense. system. if the fair market value is impracticable to determine or inadequately measures the harm. the cost of developing that information or the reduction in the value of that information that resulted from the offense. trade secrets).November 1. or information to its condition prior to the offense. factors such as the following: (i) The fair market value of the property unlawfully taken. Procurement Fraud Cases. conducting a damage assessment.—In the case of a product substitution offense. as appropriate and practicable under the circumstances. such as a fraud affecting a defense contract award.g.S. copied. The approximate number of victims multiplied by the average loss to each victim. 2009 GUIDELINES MANUAL §2B1. cost incurred.S. In the case of proprietary information (e. regardless of whether such pecuniary harm was reasonably foreseeable: any reasonable cost to any victim. See 18 U. reasonably foreseeable pecuniary harm includes the reasonably foreseeable administrative costs to the government and other participants of repeating or correcting the procurement action affected.—In the case of an offense under 18 U.1 (I) Product Substitution Cases. or of retrofitting the product so that it can be used for its intended purpose. taking into account. or other damages incurred because of interruption of service. § 1030. The estimate of the loss shall be based on available information.S..C.—The court need only make a reasonable estimate of the loss.C. program.—In the case of a procurement fraud. actual loss includes the following pecuniary harm. the cost to the victim of replacing that property. and any revenue lost. (C) (ii) (iii) (iv) – 87 – . § 1030. For this reason. The cost of repairs to damaged property. or destroyed. and the reasonably foreseeable costs of rectifying the actual or potential disruption to the victim’s business operations caused by the product substitution.—The court shall use the gain that resulted from the offense as an alternative measure of loss only if there is a loss but it reasonably cannot be determined.

grants. or if the collateral has not been disposed of by that time. Costs to the government of. the amount the victim has recovered at the time of sentencing from disposition of the collateral. "counterfeit access device" and "unauthorized access device" have the meaning given those terms in Application Note 9(A).g. if the defendant was the – 88 – (ii) . entitlement program payments). (vi) (D) Exclusions from Loss. (ii) (F) Special Rules.—Loss shall be reduced by the following: (i) The money returned. to the victim before the offense was detected. loans. and the fair market value of the property returned and the services rendered. and costs incurred by victims primarily to aid the government in. penalties..—Loss shall not include the following: (i) Interest of any kind. loss shall be not less than $100 per unused means.§2B1. and not used. For purposes of this subdivision. 2009 The reduction that resulted from the offense in the value of equity securities or other corporate assets.—Notwithstanding subdivision (A). late fees. finance charges. Government Benefits. Purloined Numbers and Codes. the following special rules shall be used to assist in determining loss in the cases indicated: (i) Stolen or Counterfeit Credit Cards and Access Devices. as the case may be. More general factors. or (II) the time the defendant knew or reasonably should have known that the offense was detected or about to be detected by a victim or government agency. the prosecution and criminal investigation of an offense. and that means was only possessed. loss includes any unauthorized charges made with the counterfeit access device or unauthorized access device and shall be not less than $500 per access device. loss shall be considered to be not less than the value of the benefits obtained by unintended recipients or diverted to unintended uses.1 (v) GUIDELINES M ANUAL November 1. such as the scope and duration of the offense and revenues generated by similar operations. amounts based on an agreed-upon return or rate of return. the fair market value of the collateral at the time of sentencing. (ii) (E) Credits Against Loss. by the defendant or other persons acting jointly with the defendant. In a case involving collateral pledged or otherwise provided by the defendant. or other similar costs. if the unauthorized access device is a means of telecommunications access that identifies a specific telecommunications instrument or telecommunications account (including an electronic serial number/mobile identification number (ESN/MIN) pair).—In a case involving government benefits (e. during the commission of the offense.—In a case involving any counterfeit access device or unauthorized access device. The time of detection of the offense is the earlier of (I) the time the offense was discovered by a victim or government agency. However. For example.

.S. the defendant shall receive at least a two-level enhancement under subsection (b)(2) and may. (ii) participate in a contest or sweepstakes. depending on the facts of the case. promotion. if the defendant was convicted under. loss shall not be reduced by the money or the value of the property transferred to any individual investor in the scheme in excess of that investor’s principal investment (i. or other means to induce a large number of persons to (i) purchase goods or services. a violation of 40 U. § 1037. with no credit provided for the value of those items or services. Accordingly. (iv) (v) (vi) (vii) 4. loss attributable to that cultural heritage resource shall be determined in accordance with the rules for determining the "value of the cultural heritage resource" set forth in Application Note 2 of the Commentary to §2B1. loss is the estimated street value of the controlled substances. an offense under 18 U.— (A) Definition.—In a case involving a fraudulent investment scheme. or (III) goods for which regulatory approval by a government agency was required but not obtained.—In a case involving a scheme in which (I) services were fraudulently rendered to the victim by persons falsely posing as licensed professionals. a telemarketing campaign that solicits a large number of individuals to purchase fraudulent life insurance policies. for example. Ponzi and Other Fraudulent Investment Schemes. rendered.—For purposes of subsection (b)(2). Value of Cultural Heritage Resources. or misrepresented. or the offense involved conduct described in. loss is $50. § 3142.5.S. the gain to an individual investor in the scheme shall not be used to offset the loss to another individual investor in the scheme).—In a case involving a Davis-Bacon Act violation (i. (iii) Davis-Bacon Act Violations. § 1037.—In a case involving controlled substances.November 1. (II) goods were falsely represented as approved by a governmental regulatory agency.—For purposes of subsection (b)(2). § 1037.e.1 intended recipient of food stamps having a value of $100 but fraudulently received food stamps having a value of $150. or was obtained by fraud. or (iii) invest for financial profit..C.e. Application of Subsection (b)(2). (B) – 89 – . Certain Other Unlawful Misrepresentation Schemes. or campaign that is conducted through solicitation by telephone. "Mass-marketing" includes. criminally prosecuted under 18 U.S. mail.C. the Internet. Applicability to Transmission of Multiple Commercial Electronic Mail Messages. program.S.C. Value of Controlled Substances.C. or any other offense involving conduct described in 18 U. loss shall include the amount paid for the property.C. § 1001). 2009 GUIDELINES MANUAL §2B1. receive a greater enhancement under such subsection. services or goods transferred. the value of the benefits shall be considered to be not less than the difference between the legally required wages and actual wages paid.—In a case involving a cultural heritage resource. such as a Ponzi scheme. 18 U. shall be considered to have been committed through mass-marketing. "mass-marketing" means a plan.S.

shall.—For purposes of subsection (b)(2).—A case described in subdivision (C)(i) of this note that involved— (I) a United States Postal Service relay box. mail taken from the addressee’s mail box). or (ii) any individual whose means of identification was used unlawfully or without authority. (E) 5. proprietary service..—For purposes of subsection (b)(7). transferred. Application of Subsection (b)(7). the court shall consider the following nonexhaustive list of factors in determining whether the defendant was in the business of receiving and selling stolen property: (A) (B) (C) (D) The regularity and sophistication of the defendant’s activities.—"Undelivered United States mail" means mail that has not actually been received by the addressee or the addressee’s agent (e. The extent to which the defendant’s activities encouraged or facilitated other crimes. Enhancement for Business of Receiving and Selling Stolen Property under Subsection (b)(4). shall be considered to have involved at least 50 victims.1(b)(2) shall not apply. satchel.—In a case in which undelivered United States mail was taken.— (i) In General. "victim" means (I) any victim as defined in Application Note 1. collection box. 6. or other online public forum.g. unless proven otherwise. whether such receptacle is owned by the United States Postal Service or otherwise owned. or (II) any person who was the intended recipient. or in a case in which the stolen property received. transported. in a case involving means of identification "victim" means (i) any victim as defined in Application Note 1. or addressee. (D) Vulnerable Victims. delivery vehicle. or cart. transmitted.—If subsection (b)(2)(B) or (C) applies. or the taking of such item was an object of the offense. "improper means" includes the unauthorized harvesting of electronic mail addresses of users of a website. (ii) (II) (iii) Definition. of the undelivered United States mail. a housing unit cluster box or any similar receptacle that contains multiple mailboxes.1 (C) GUIDELINES M ANUAL November 1. The value and size of the inventory of stolen property maintained by the defendant.—For purposes of subsection (b)(4). Special Rule. or possessed was undelivered United States mail. an enhancement under §3A1. The defendant’s past activities involving stolen property. – 90 – . Cases Involving Means of Identification. 2009 Undelivered United States Mail. be presumed to have involved the number of victims corresponding to the number of mailboxes in each cluster box or similar receptacle.§2B1.

discount. A defendant who solicited donations from church members by falsely claiming to be a fundraiser for a religiously affiliated school..— (A) In General. injunction. (B) (ii) (iii) (C) Fraud in Contravention of Prior Judicial Order.3 (Commission of Offense While on Release) or a violation of probation addressed in §4A1.1 7. Misrepresentations Regarding Charitable and Other Institutions. is subject to this enhancement..1 (Criminal History Category)). 2009 GUIDELINES MANUAL §2B1. for the defendant’s personal gain). to the following: (i) A defendant who solicited contributions for a non-existent famine relief organization. "Institution of higher education" has the meaning given that term in section 101 of the Higher Education Act of 1954 (20 U. in a particular case. more than one of the enumerated factors applied. a defendant whose business previously was enjoined from selling a dangerous product. decree. or other financial assistance for the purpose of financing an education. award. this enhancement applies even if the defendant was not a specifically named party in that prior case. who conducted a public fundraiser representing that the purpose of the fundraiser was to procure sufficient funds for a new fire engine when. or political organization. Subsection (b)(8)(A) applies. official judicial or administrative warning demonstrates aggravated criminal intent and deserves additional punishment. however. but who nonetheless engaged in fraudulent conduct to sell the product. or process. Application of Subsection (b)(8).November 1. If. in fact. the defendant intended to divert some of the funds for the defendant’s personal benefit. official judicial or administrative warning. an upward departure may be warranted. tuition. College Scholarship Fraud. to take or not to take a specified action. This enhancement does not apply if the same conduct resulted in an enhancement pursuant to a provision found elsewhere in the guidelines (e. chief of a local fire department.g.S.g. educational.C. For example. A defendant who does not comply with such a prior.—Subsection (b)(8)(C) provides an enhancement if the defendant commits a fraud in contravention of a prior. A defendant. in the form of an order.—For purposes of subsection (b)(8)(D): "Financial assistance" means any scholarship. grant.—The adjustments in subsection (b)(8) are alternative rather than cumulative. If it is established that an entity the defendant controlled was a party to the prior proceeding that resulted in the official judicial or administrative action. and the defendant had knowledge of that prior decree or order.—Subsection (b)(8)(A) applies in any case in which the defendant represented that the defendant was acting to obtain a benefit on behalf of a charitable. or a government agency (regardless of whether the defendant actually was associated with the organization or government agency) when. for example. § 1001). religious. in fact. a violation of a condition of release addressed in §3C1. – 91 – (D) . loan. the defendant intended to divert all or part of that benefit (e.

—If the conduct that forms the basis for an enhancement under subsection (b)(9) is the only conduct that forms the basis for an adjustment under §3C1.C.— (A) Definitions. and (ii) includes (I) any hardware or software that has been configured as described in 18 U. and (II) a scanning receiver referred to in 18 U.§2B1. Conduct such as hiding assets or transactions. do not apply that adjustment under §3C1. locating the main office of the scheme in one jurisdiction but locating soliciting operations in another jurisdiction ordinarily indicates sophisticated means. Application of Subsection (b)(10). or both.—If the conduct that forms the basis for an enhancement under subsection (b)(8)(B) or (C) is the only conduct that forms the basis for an adjustment under §3C1. "Counterfeit access device" (i) has the meaning given that term in 18 U.S. corporate shells.— (i) Subsection (b)(8)(A). and American Samoa. 2009 Non-Applicability of Chapter Three Adjustments. Sophisticated Means Enhancement under Subsection (b)(9).1 (E) GUIDELINES M ANUAL November 1.S.—For purposes of subsection (b)(9)(B). "sophisticated means" means especially complex or especially intricate offense conduct pertaining to the execution or concealment of an offense. do not apply that adjustment under §3C1. § 1029(e)(8). the Commonwealth of Puerto Rico. or offshore financial accounts also ordinarily indicates sophisticated means.S.C.—If the conduct that forms the basis for an enhancement under subsection (b)(8)(A) is the only conduct that forms the basis for an adjustment under §3B1.— (A) Definition of United States. the District of Columbia. § 1028(d)(1).—For purposes of subsection (b)(9)(C).C.3. § 1029(e)(6).3 (Abuse of Position of Trust or Use of Special Skill).C. do not apply that adjustment under §3B1. Subsection (b)(8)(B) and (C). through the use of fictitious entities. and (ii) includes a telecommunications instrument that has been modified or altered to obtain unauthorized use of telecommunications service. the United States Virgin Islands.S.1 (Obstructing or Impeding the Administration of Justice). (B) (C) 9. § 1029(e)(2). (ii) 8. Non-Applicability of Chapter Three Adjustment. "United States" means each of the 50 states.1. "Scanning receiver" has the meaning given that term in 18 U. in a telemarketing scheme. the Northern Mariana Islands.1.C. § 1029(a)(9).—For purposes of subsection (b)(10): "Authentication feature" has the meaning given that term in 18 U. For example. § 1029(a)(8).C. – 92 – . Guam.1. "Device-making equipment" (i) has the meaning given that term in 18 U.S.S. Sophisticated Means Enhancement.

the account number of the bank loan is the other means of identification that has been obtained unlawfully. alter. from a piece of mail taken from the individual’s mailbox) and obtains a bank loan in that individual’s name.—Examples of conduct to which subsection (b)(10)(C)(i) applies are as follows: (I) A defendant obtains an individual’s name and social security number from a source (e. citizenship. In such a case.. or legal resident status. was to violate. the credit card is the other means of identification that has been obtained unlawfully. in violation of 18 U. design. also are covered by this guideline.2 (Fraudulently Acquiring Documents Relating to Naturalization).g. (B) Authentication Features and Identification Documents. – 93 – .—Subsection (b)(10)(C)(i) applies in a case in which a means of identification of an individual other than the defendant (or a person for whose conduct the defendant is accountable under §1B1.S. and subsequently uses a credit card in that individual’s name.November 1. Examples. rather than this guideline. § 1029(e)(3).3 (Relevant Conduct)) is used without that individual’s authorization unlawfully to produce or obtain another means of identification. "Unauthorized access device" has the meaning given that term in 18 U. design. the defendant has not used the stolen credit card to obtain another means of identification. under 18 U. A defendant obtains an individual’s name and address from a source (e. "Telecommunications service" has the meaning given that term in 18 U.C.1 "Produce" includes manufacture. If the primary purpose of the offense. identification documents.S. from a driver’s license in a stolen wallet) and applies for. (C) (ii) (II) (iii) Non-Applicability of Subsection (b)(10)(C)(i). alteration. authenticate. obtains. duplication. § 1029(e)(9). or assemble. duplicate.S.S. authentication. false identification documents.— (i) In General..C. Application of Subsection (b)(10)(C)(i). the law pertaining to naturalization. or assist another to violate. In this example.1 (Trafficking in a Document Relating to Naturalization) or §2L2. In this example.g. as appropriate. apply §2L2.C. 2009 GUIDELINES MANUAL §2B1. § 1028. § 1028.C.—Offenses involving authentication features. and means of identification. "Production" includes manufacture.—Examples of conduct to which subsection (b)(10)(C)(i) does not apply are as follows: (I) A defendant uses a credit card from a stolen wallet only to make a purchase. or assembly.

payment. The financial institution substantially reduced benefits to pensioners or insureds.S. § 982(a)(4). The financial institution was unable on demand to refund fully any deposit. bus. sophisticated operation (e. rather than to all participants. 2009 A defendant forges another individual’s signature to cash a stolen check.— (i) Definition. which is obtained directly or indirectly as a result of such offense.000. (iv) (B) Application of Subsection (b)(14)(B)(ii). an auto theft ring or "chop shop") to steal or to receive stolen (A) vehicles or vehicle parts. – 94 – . Application of Subsection (b)(12).—The following is a non-exhaustive list of factors that the court shall consider in determining whether.§2B1. as a result of the offense.—"Gross receipts from the offense" includes all property.000.. vessel. (D) Application of Subsection (b)(10)(C)(ii).1 (II) GUIDELINES M ANUAL November 1.1 (Applicability of Chapter Eight). (B) 12. "organization" has the meaning given that term in Application Note 1 of §8A1.—For purposes of this subsection. regardless of the number of individuals in whose name (or other identifying information) the means of identification were so produced or so obtained. 11. See 18 U.g. A "cargo shipment" includes cargo transported on a railroad car. or aircraft. the defendant shall be considered to have derived more than $1. tangible or intangible.—For purposes of subsection (b)(14)(A). the safety and soundness of a financial institution was substantially jeopardized: (i) (ii) (iii) The financial institution became insolvent.— (A) In General. steamboat. Forging another individual’s signature is not producing another means of identification. real or personal. Application of Subsection (b)(14)(B).000. or airplane. or (B) goods or chattels that are part of a cargo shipment.C.— (A) Application of Subsection (b)(14)(B)(i). 10.000 in gross receipts if the gross receipts to the defendant individually. Definition. vessel. For purposes of this subsection.—Subsection (b)(12) provides a minimum offense level in the case of an ongoing. "vehicle" means motor vehicle.—Subsection (b)(10)(C)(ii) applies in any case in which the offense involved the possession of 5 or more means of identification that unlawfully were produced or obtained. The financial institution was so depleted of its assets as to be forced to merge with another institution in order to continue active operations. Gross Receipts Enhancement under Subsection (b)(14)(A). or investment. exceeded $1.

police. The organization substantially reduced its employee pension benefits. United States Code). public health or safety. telecommunications networks. financing and banking systems. the solvency or financial security of an organization that was a publicly traded company or that had more than 1. (B) Subsection (b)(16)(A)(iii).—For purposes of subsection (b)(17): "Commodities law" means (i) the Commodity Exchange Act (7 U. § 1030(e)(9). or any combination of those matters. and – 95 – . Examples of critical infrastructures include gas and oil production. Application of Subsection (b)(17).—For purposes of subsection (b)(16): "Critical infrastructure" means systems and assets vital to national defense. 11. § 1 et seq. as a result of the offense. airlines.).C. transportation systems and services (including highways. do not apply the enhancement under subsection (b)(14)(B). fire.S. the company was delisted from its primary listing exchange.—The following is a non-exhaustive list of factors that the court shall consider in determining whether. and government operations that provide essential services to the public.1 (ii) In General. A critical infrastructure may be publicly or privately owned. water supply systems. The organization suffered a substantial reduction in the value of its equity securities or the value of its employee retirement accounts.—If the same conduct that forms the basis for an enhancement under subsection (b)(16)(A)(iii) is the only conduct that forms the basis for an enhancement under subsection (b)(14)(B).S. and delivery systems. national security.C. (II) (III) (IV) (V) (VI) 13.— (A) Definitions. and rescue services). economic security. The organization filed for bankruptcy under Chapters 7. or 13 of the Bankruptcy Code (title 11. emergency services (including medical. For example. storage. The liquidity of the equity securities of a publicly traded company was substantially endangered.— (A) Definitions. mass transit. 2009 GUIDELINES MANUAL §2B1. Application of Subsection (b)(16). and airports).000 employees was substantially endangered: (I) The organization became insolvent or suffered a substantial reduction in the value of its assets. 14. "Government entity" has the meaning given that term in 18 U. electrical power delivery systems. The organization substantially reduced its workforce.November 1. or trading of the company’s securities was halted for more than one full trading day.

even if the officer is convicted only of wire fraud.3. do not apply §3B1.C. and orders issued by the Commodity Futures Trading Commission. § 78c(a)(47)).—If subsection (b)(17) applies. § 1a(23)).S. this subsection would apply if an officer of a publicly traded company violated regulations issued by the Securities and Exchange Commission by fraudulently influencing an independent audit of the company’s financial statements for the purposes of rendering such financial statements materially misleading. "Futures commission merchant" has the meaning given that term in section 1a(20) of the Commodity Exchange Act (7 U. Nonapplicability of §3B1.S. "Person associated with a broker or dealer" has the meaning given that term in section 3(a)(18) of the Securities Exchange Act of 1934 (15 U.S. Sometimes. "Investment adviser" has the meaning given that term in section 202(a)(11) of the Investment Advisers Act of 1940 (15 U. § 80b-2(a)(11)).C. "Person associated with an investment adviser" has the meaning given that term in section 202(a)(17) of the Investment Advisers Act of 1940 (15 U. "Commodity trading advisor" has the meaning given that term in section 1a(6) of the Commodity Exchange Act (7 U. (B) In General. and the count of conviction establishes an offense involving fraudulent conduct that is more aptly covered by another guideline. "Registered broker or dealer" has the meaning given that term in section 3(a)(48) of the Securities Exchange Act of 1934 (15 U. § 78c(a)(18)).S. § 1a(5)).—A conviction under a securities law or commodities law is not required in order for subsection (b)(17) to apply.S. Cross Reference in Subsection (c)(3).1 GUIDELINES M ANUAL November 1. and the provisions of law referred to in section 3(a)(47) of the Securities Exchange Act of 1934 (15 U.C.S. "Securities law" (i) means 18 U.S. (C) 15. or a similarly general statute.3 (Abuse of Position of Trust or Use of Special Skill).S. § 80b-2(a)(17)). offenses involving fraudulent statements are prosecuted under 18 U. and (ii) includes the rules. For example.C. "Introducing broker" has the meaning given that term in section 1a(23) of the Commodity Exchange Act (7 U.C. "Commodity pool operator" has the meaning given that term in section 1a(5) of the Commodity Exchange Act (7 U.§2B1.S. §§ 1348. § 1001.C. 2009 (ii) includes the rules.C.C. § 1a(20)). 1350. and orders issued by the Securities and Exchange Commission pursuant to the provisions of law referred to in such section.S.S. – 96 – . § 1a(6)).C. regulations. § 78c(a)(48)). regulations.C. This subsection would apply in the case of a defendant convicted under a general fraud statute if the defendant’s conduct violated a securities law or commodities law.C.—Subsection (c)(3) provides a cross reference to another guideline in Chapter Two (Offense Conduct) in cases in which the defendant is convicted of a general fraud statute.

C. a primary objective of the offense was to inflict emotional harm. or severe emotional trauma.C. In certain other cases.g.3 (Structuring Transactions to Evade Reporting Requirements) likely would be more apt. educational.—There may be cases in which the offense level determined under this guideline substantially understates the seriousness of the offense. 2009 GUIDELINES MANUAL §2B1.1. An upward departure also would be warranted. attempted theft or fraud). See Chapter Three.S. and false statements to a customs officer. 19. or both. An upward departure would be warranted.1 (Attempt. in an 18 U. Such a case would be more aptly sentenced pursuant to §2C1. the mail or wire fraud statutes. Continuing Financial Crimes Enterprise. for which §2T3. the inchoate offense (attempt. Giving. Part D (Multiple Counts).S. In such cases. For example. or Conspiracy) whether the conviction is for the substantive offense. solicitation.—Some fraudulent schemes may result in multiple-count indictments. Solicitation. depending on the technical elements of the offense. Soliciting.C. (ii) . or Receiving a Bribe. if. Examples include false entries regarding currency transactions. § 225 (relating to a continuing financial crimes enterprise). Departure Considerations. the offense level is that applicable to the underlying series of offenses comprising the "continuing financial crimes enterprise". the offense caused physical harm. non-monetary objective.November 1. Multiple-Count Indictments. The following is a nonexhaustive list of factors that the court may consider in determining whether an upward departure is warranted: (i) A primary objective of the offense was an aggravating. an offense involving a completed theft or fraud that is part of a larger. § 1341 for fraud involving the deprivation of the intangible right of honest services. or conspiracy). Receiving or Trafficking in Smuggled Property) likely would be more apt. The cumulative loss produced by a common scheme or course of conduct should be used in determining the offense level. or other relatively broad statutes.. for which §2S1.—If the defendant is convicted under 18 U. an upward departure may be warranted. Extortion Under Color of Official Right. – 97 – 17. for example. The offense caused or risked substantial non-monetary harm.1 (Offering. For example. 18. regardless of the number of counts of conviction. Partially Completed Offenses. the theft of personal information such as medical. a state employee who improperly influenced the award of a contract and used the mails to commit the offense may be prosecuted under 18 U.— (A) Upward Departure Considerations.1 (Evading Import Duties or Restrictions (Smuggling). as a result of that offense. or resulted in a substantial invasion of a privacy interest (through. the offense level is to be determined in accordance with the provisions of §2X1. § 1030 offense involving damage to a protected computer. Fraud involving the Deprivation of the Intangible Right to Honest Services of Public Officials. For example. or financial records).1 although the offense involves fraudulent conduct that is also covered by a more specific statute. are used primarily as jurisdictional bases for the prosecution of other offenses.—In the case of a partially completed offense (e. 16. psychological harm. See Application Note 4 of the Commentary to §2X1. for example. death resulted.S. Conspiracy to Defraud by Interference with Governmental Functions).

not included in the determination of loss for purposes of subsection (b)(1).—If (i) the minimum offense level of level 12 in subsection (b)(11) applies. or substantial scientific research or information were destroyed. (iii) The offense involved a substantial amount of interest of any kind. 2009 for example. finance charges. penalties. amounts based on an agreed-upon return or rate of return. (C) (D) – 98 – .S.1 GUIDELINES M ANUAL November 1.S. or other similar costs. national economic security. § 43.S. An individual whose means of identification the defendant used to obtain unlawful means of identification is erroneously arrested or denied a job because an arrest record has been made in that individual’s name. the defendant sought the stolen information to further a broader criminal purpose. a downward departure may be warranted. loss. a downward departure may be warranted. if.§2B1.C. The offense created a risk of substantial loss beyond the loss determined for purposes of subsection (b)(1). or the victim suffered a substantial inconvenience related to repairing the victim’s reputation or a damaged credit record. in the course of the offense. as defined in 18 U. In a case involving stolen information from a "protected computer".C. Downward Departure for Major Disaster or Emergency Victims. and (iii) the benefits received illegally were only an extension or overpayment of benefits received legitimately. § 5122. (iv) (v) (vi) (II) (III) (B) Upward Departure for Debilitating Impact on a Critical Infrastructure. In such cases. or any combination of those matters.—An upward departure would be warranted in a case in which subsection (b)(16)(A)(iii) applies and the disruption to the critical infrastructure(s) is so substantial as to have a debilitating impact on national security. Downward Departure Consideration. (ii) the defendant sustained damage. § 1030(e)(2). or suffering caused by a major disaster or an emergency as those terms are defined in 42 U. in a case involving animal enterprise terrorism under 18 U. late fees. hardship.C. The defendant produced or obtained numerous means of identification with respect to one individual and essentially assumed that individual’s identity. In a case involving access devices or unlawfully produced or unlawfully obtained means of identification: (I) The offense caused substantial harm to the victim’s reputation or credit record.—There may be cases in which the offense level determined under this guideline substantially overstates the seriousness of the offense. serious bodily injury or death resulted. national public health or safety.

a single pattern of offense conduct usually can be prosecuted under several code sections. Offenses that involve the use of financial transactions or financial accounts outside the United States in an effort to conceal illicit profits and criminal conduct involve a particularly high level of sophistication and complexity. receives an enhanced sentence because of the increased risk of physical injury. Furthermore. Consequently. The specific offense characteristics and cross references contained in this guideline are designed with these considerations in mind. a minimum offense level of level 12 is provided for these offenses. most fraud statutes cover a broad range of conduct with extreme variation in severity. ordinarily. Therefore. This guideline does not include an enhancement for thefts from the person by means of force or fear. property damage or destruction. loss serves as a measure of the seriousness of the offense and the defendant’s relative culpability and is a principal factor in determining the offense level under this guideline. the sentences of defendants convicted of federal offenses should reflect the nature and magnitude of the loss caused or intended by their crimes. the scope of such activity is substantial. a defendant who has been subject to civil or administrative proceedings for the same or similar fraudulent conduct demonstrates aggravated criminal intent and is deserving of additional punishment for not conforming with the requirements of judicial process or orders issued by federal. – 99 – . 2009 GUIDELINES MANUAL §2B1. A minimum offense level of level 14 is provided for offenses involving an organized scheme to steal vehicles or vehicle parts. as a result of which the offense of conviction may be somewhat arbitrary. or local administrative agencies. Taking advantage of a victim’s selfinterest does not mitigate the seriousness of fraudulent conduct. and counterfeiting (other than offenses involving altered or counterfeit bearer obligations of the United States). The Commission has determined that. but the value of the property may be particularly difficult to ascertain in individual cases because the stolen property is rapidly resold or otherwise disposed of in the course of the offense. Diplomatic processes often must be used to secure testimony and evidence beyond the jurisdiction of United States courts. Typically. Subsection (b)(6) implements the instruction to the Commission in section 2 of Public Law 105–101 and the directive to the Commission in section 3 of Public Law 110–384. defendants who exploit victims’ charitable impulses or trust in government create particular social harm. Theft from the person of another. forgery. Accordingly.November 1.1 (Robbery). the specific offense characteristic of "organized scheme" is used as an alternative to "loss" in setting a minimum offense level. In a similar vein. Because federal fraud statutes often are broadly written. such as pickpocketing or non-forcible purse-snatching.1 Background: This guideline covers offenses involving theft. These offenses are difficult to detect and require costly investigations and prosecutions. such crimes are robberies and are covered under §2B3. along with other relevant factors under the guidelines. fraud. stolen property. state. Use of false pretenses involving charitable causes and government agencies enhances the sentences of defendants who take advantage of victims’ trust in government or law enforcement agencies or the generosity and charitable motives of victims. rather.

g. social security number. Subsections (b)(10)(A)(i) and (B)(i) implement the instruction to the Commission in section 4 of the Wireless Telephone Protection Act.." Generally. inconvenience. in a broader form. in a broader form. in a broader form. 2009 Subsection (b)(8)(D) implements. Subsection (b)(14)(B)(i) implements. Subsection (b)(14)(A) implements. the directive in section 3 of the College Scholarship Fraud Prevention Act of 2000. This subsection provides a minimum offense level of level 12. much of which may be difficult or impossible to quantify (e. The minimum offense level accounts for the fact that the means of identification that were "bred" (i.e. harm to the individual’s reputation or credit rating. Public Law 105–172. in part because of the seriousness of the offense. Public Law 106–420.. Subsection (b)(15) implements the directive in section 209 of Public Law 110–326. or a bank loan.S. § 1028(d) broadly defines "means of identification".. the victim does not become aware of the offense until certain harms have already occurred (e. Public Law 105–318. the instruction to the Commission in section 961(m) of Public Law 101–73.e. produced or obtained) often are within the defendant’s exclusive control. Subsection (b)(11) implements the directive in section 5 of Public Law 110–179. the new or additional forms of identification can include items such as a driver’s license. in a broader form. produce or obtain) new or additional forms of identification.1 GUIDELINES M ANUAL November 1.C. The minimum offense level of level 24 provided in subsection (b)(16)(B) for an offense that resulted in a substantial disruption of a critical infrastructure reflects the serious impact such an offense could – 100 – . and other difficulties resulting from the offense). Because 18 U. This subsection focuses principally on an aggravated form of identity theft known as "affirmative identity theft" or "breeding". Subsection (b)(9) implements. the instruction to the Commission in section 110512 of Public Law 103–322.g. or some other form of identification (the "means of identification") to "breed" (i. Subsection (b)(13)(B) implements. Subsection (b)(16) implements the directive in section 225(b) of Public Law 107–296. Subsection (b)(10)(C) implements the directive to the Commission in section 4 of the Identity Theft and Assumption Deterrence Act of 1998.§2B1. a damaged credit rating or an inability to obtain a loan). in which a defendant uses another individual’s name. the instruction to the Commission in section 2507 of Public Law 101–647. a credit card. The legislative history of the Identity Theft and Assumption Deterrence Act of 1998 indicates that Congress was especially concerned with providing increased punishment for this type of harm. making it difficult for the individual victim to detect that the victim’s identity has been "stolen.. in a broader form. the instruction to the Commission in section 6(c)(2) of Public Law 105–184. The minimum offense level also accounts for the non-monetary harm associated with these types of offenses.

3.10b-5. or a combination of any of these matters. November 1. Insider Trading (a) (b) Base Offense Level: 8 Specific Offense Characteristic (1) If the gain resulting from the offense exceeded $5.000.4 have on national security. November 1. 1989 (see Appendix C.F. 2003 (see Appendix C. amendments 665. Property Destruction. November 1. and 646). June 15.1 effective November 1. 666. amendments 726. national economic security. and 661). 2001 (see Appendix C. [Deleted] Historical Note: Section 2B1. Commentary Statutory Provisions: 15 U. Transmitting. 2008 (see Appendix C. increase by the number of levels from the table in §2B1.—Section 3B1. 1997 (see Appendix C. November 1. 2009 GUIDELINES MANUAL §2B1. 1993 (see Appendix C. 2000 (see Appendix C.3. 1990 (see Appendix C.3 (Abuse of Position of Trust or Use of Special Skill) should be applied only if the defendant occupied and abused a position of special trust. November 1. 654. 317. effective November 1. November 1. amendment 481). amendment 551). amendment 596). amendments 481 and 482). 1989 (see Appendix C.3 (Property Damage or Destruction). Transferring. amendment 679). November 1. §2B1. 1988 (see Appendix C. §2B1.R. 2001 (see Appendix C. amendments 685 and 696). 1997 (see Appendix C.S. November 1. amendments 312. §2B1.C. and 674). and Fraud) corresponding to that amount.2 (Receiving. Application Note: 1. November 1. 2003 (see Appendix C. Application of Subsection of §3B1. February 6. 2004 (see Appendix C. November 1. Amended effective June 15. November 1. amendments 637. amendments 699. Historical Note: Effective November 1. amendment 512). Transporting. January 25. amendment 10). amendments 99-101 and 303). effective November 1. amendments 102-104). November 1. and November 1.November 1.4. amended effective June 15. 2005 (see Appendix C. 1987. 655. amendment 714). was deleted by consolidation with §2B1. 2007 (see Appendix C.1 (Theft. amendment 576). November 1. and 737). amendment 9). 2008 (see Appendix C. 1988 (see Appendix C. was deleted by consolidation with §2B1. 1998 (see Appendix C. 2009 (see Appendix C. amendment 7). see Appendix A (Statutory Index). amendment 617). amendment 551). and 702). November 1. amendments 312 and 361). 733. 700. November 1.2. For additional statutory provision(s). 638. November 1. November 1. November 1. 1990 (see Appendix C. 1993 (see Appendix C. amendment 576). amendments 719 and 725). amendments 364 and 393). November 1. 1990 (see Appendix C. 1987. [Deleted] Historical Note: Section 2B1. 1987. amendments 312 and 313). 1991 (see Appendix C. 1995 (see Appendix C.1 effective November 1. 1998 (see Appendix C. national public health or safety. and 361). 1988 (see Appendix C. 1988 (see Appendix C. § 78j and 17 C. amended effective January 15. November 1. amendment 647). amendment 8). or Possessing Stolen Property). amendment 617). Examples might include a corporate president or an attorney who misused information – 101 – . 2006 (see Appendix C. amendments 653. § 240. November 1. 2002 (see Appendix C.

the total increase in value realized through trading in securities by the defendant and persons acting in concert with the defendant or to whom the defendant provided inside information. (C) a national monument or national memorial.S. increase by 2 levels. e. (B) a National Historic Landmark. Damage to. It typically would not apply to an ordinary "tippee". Historical Note: Effective November 1. and Fraud) corresponding to that amount. § 13(e). Purchase. Theft of. or in the custody of (A) the national park system. If the offense involved a cultural heritage resource from. amendment 617). increase by the number of levels from the table in §2B1. 2001 (see Appendix C. If the offense involved a cultural heritage resource constituting (A) human remains. Property Destruction. increase by 1 level. Transportation. Certain other offenses. Insider trading is treated essentially as a sophisticated fraud. (D) a sacred object.C. i.000. If the offense was committed for pecuniary gain or otherwise involved a commercial purpose. (F) designated archaeological or ethnological material. Because the victims and their losses are difficult if not impossible to identify. that involve misuse of inside information for personal gain also appropriately may be covered by this guideline. Unlawful Sale. If the defendant engaged in a pattern of misconduct involving cultural heritage resources. Exchange. Background: This guideline applies to certain violations of Rule 10b-5 that are commonly referred to as "insider trading". increase by 2 levels. or Destruction of. §2B1. prior to the offense.4 GUIDELINES M ANUAL November 1..1 (Theft. is employed instead of the victims’ losses.g. 7 U. (E) a national cemetery or veterans’ memorial. or that. the gain. (F) a museum.000..§2B1.5.e. (B) a funerary object. increase by 2 levels. (C) cultural patrimony. (E) cultural property. in. (D) a national marine sanctuary. or (G) a pre-Columbian monumental or architectural sculpture or mural. was on. or Receipt of Cultural Heritage Resources (a) (b) Base Offense Level: 8 Specific Offense Characteristics (1) If the value of the cultural heritage resource (A) exceeded $2. Cultural Heritage Resources. or (B) exceeded $5. or (G) the World Heritage List. (2) (3) (4) (5) – 102 – . 2009 regarding a planned but unannounced takeover attempt.000 but did not exceed $5. increase by 2 levels.

An archaeological resource.C. § 10. 36 C.S. "Commemorative work" (A) has the meaning given that term in section 2(c) of Public Law 99–652 (40 U.C.R. 641. as defined in 18 U. 1312). A cultural item. 1168. Commentary Statutory Provisions: 16 U.—For purposes of subsection (b)(1). §§ 2601(2)(ii). 1170. if the resulting offense level is greater than that determined above. 668(a).C. as defined in 16 U. the following: – 103 – . §§ 541-546. If the resulting offense level is less than level 14. explosive material. as described in 19 U. "cultural heritage resource" means any of the following: (A) A historic property. "Cultural Heritage Resource" Defined. 2601(7). 707(b).S. 296. 2314-2315. pt. 666. § 470w(5) (see also section 16(l) of 36 C. pt. pt.C.November 1. as applicable to the particular resource involved.S. 554. 32 C. §§ 470ee.S. A historic resource. 299.C.C. Application Notes: 1. or destructive device.F. apply §2K1.F. § 470bb(1) (see also section 3(a) of 43 C. 1163. (B) (C) (D) (E) (F) (G) 2. Designated ethnological material. increase by 2 levels. pt.F.S.C. Value of the Cultural Heritage Resource Under Subsection (b)(1).F.F.5 (6) If a dangerous weapon was brandished or its use was threatened. § 3001(3) (see also 43 C. A commemorative work. 2009 GUIDELINES MANUAL §2B1.R. the value of the cultural heritage resource shall include. as defined in section 2(3) of the Native American Graves Protection and Repatriation Act. 668. as defined in 16 U.2(d)).—For purposes of this guideline. § 668(a)(2). and 2604. Property Damage by Use of Explosives).R. § 1002(c)).C.C. 2232. increase to level 14.F. (A) General Rule. 18 U. and (B) includes any national monument or national memorial.S.R. pt. (c) Cross Reference (1) If the offense involved arson.S. 25 U. 1369.R. as defined in 16 U.S. 7. 661-662.4 (Arson.S. 800). 1361. 18 C. § 470w(5).R.—This application note applies to the determination of the value of the cultural heritage resource under subsection (b)(1). or property damage by the use of any explosive. 1152-1153. An object of cultural heritage.

R. the cultural heritage resource.R.F.R. (III) research necessary to conduct reconstruction and stabilization. conducting laboratory analysis.F. § 1312.R.F. Enhancement in Subsection (b)(2).—For purposes of subsection (b)(1). § 229.R. and preparing reports.14(b).14(b). § 7. § 7. 32 C. (II) reconstruction and stabilization of ground contour and surface.14(c). (Archaeological value shall be included in the case of any cultural heritage resource that is an archaeological resource.5 (i) GUIDELINES M ANUAL November 1. including (I) its reconstruction and stabilization. the court need only make a reasonable estimate of the value of the cultural heritage resource based on available information.14(b). conducting field work.F. (See 43 C. 2009 The archaeological value.14(c).14(b). – 104 – . (ii) (iii) (B) Estimation of Value.14(a).S.—For purposes of subsection (b)(2): (A) "Museum" has the meaning given that term in 18 U. and any other actual and projected costs to complete restoration and repair of the cultural heritage resource. including the cost of preparing a research design.F.14(c).R. 36 C.F. § 1312. § 1312.) "Commercial value" of a cultural heritage resource means the fair market value of the cultural heritage resource at the time of the offense. § 668(a)(1) except that the museum may be situated outside the United States. and appropriate reburial of. § 296.) (C) (ii) (iii) (D) Determination of Value in Cases Involving a Variety of Cultural Heritage Resources. 18 C.) The commercial value. 18 C.14(a).14(a).R.R.R.14(c).§2B1. as would be necessary to realize the information potential. § 7. § 229. 3.F. (V) examination and analysis of the cultural heritage resource as part of efforts to salvage remaining information about the resource.F. § 296. disposition. 32 C. (See 43 C. 36 C.F.F. 18 C.—For purposes of this application note: (i) "Archaeological value" of a cultural heritage resource means the cost of the retrieval of the scientific information which would have been obtainable prior to the offense. (See 43 C.R.—In a case involving a variety of cultural heritage resources.) "Cost of restoration and repair" includes all actual and projected costs of curation.14(a).R. the value of the cultural heritage resources is the sum of all calculations made for those resources under this application note. The cost of restoration and repair. and (VI) preparation of reports. (IV) the construction of physical barriers and other protective devices. § 296.F. 32 C. § 229.F. and consultation with respect to. Definitions.R. 36 C.C.

§ 1c(a). § 3001(3)(C) (see also 43 C. § 2601(7) (see also 19 U. "National monument or national memorial" means any national monument or national memorial established as such by Act of Congress or by proclamation pursuant to the Antiquities Act of 1906 (16 U. was placed intentionally. § 2601(6).S. "National park system" has the meaning given that term in 16 U.C. 2009 GUIDELINES MANUAL §2B1. § 431). with or near human remains.S.S.C.5 (B) "National cemetery" and "veterans’ memorial" have the meaning given those terms in Application Note 1 of the Commentary to §2B1.R. 10. "Cultural property" has the meaning given that term in 19 U.C. §§ 2601(2) and 2604). "Designated archaeological or ethnological material" means archaeological or ethnological material described in 19 U.November 1. (C) (D) (E) (F) (G) 4. such as hair made into ropes or nets.C. Scientific. § 10.S. § 2095(3).C. as a part of the death rite or ceremony of a culture.S. "National Historic Landmark" means a property designated as such pursuant to 16 U.2(d)(3)). and Fraud).S.C. § 1433. Property Destruction.S. and Cultural Organization in accordance with the Convention Concerning the Protection of the World Cultural and Natural Heritage. "Human remains" (i) means the physical remains of the body of a human.—For purposes of subsection (b)(3): (A) "Cultural patrimony" has the meaning given that term in 25 U.F.C.S. and (ii) does not include remains that reasonably may be determined to have been freely disposed of or naturally shed by the human from whose body the remains were obtained.C. "Pre-Columbian monumental or architectural sculpture or mural" has the meaning given that term in 19 U.C. "Sacred object" has the meaning given that term in 25 U. § 470a(a)(1)(B). Enhancement in Subsection (b)(3).S.R.2(d)(4)).S. (B) (C) (D) (E) (F) (G) – 105 – . "Funerary object" means an object that. at the time of death or later.C.F. "World Heritage List" means the World Heritage List maintained by the World Heritage Committee of the United Nations Educational. § 3001(3)(D) (see also 43 C. "National marine sanctuary" means a national marine sanctuary designated as such by the Secretary of Commerce pursuant to 16 U.1 (Theft.

whether monetary or in goods or services. items that are not cultural heritage resources (such as an offense involving the theft from a national cemetery of lawnmowers and other administrative property in addition to historic gravemarkers or other cultural heritage resources).2 (Groups of Closely Related Counts). – 106 – . For example.§2B1. Multiple counts involving cultural heritage offenses covered by this guideline and offenses covered by other guidelines are not to be grouped under §3D1.—There may be cases in which the offense level determined under this guideline substantially understates the seriousness of the offense.—For purposes of subsection (b)(5). Upward Departure Provision. or a private forprofit organization. Pattern of Misconduct Enhancement Under Subsection (b)(5). or destruction of. Computation of Criminal History Points. the offense involved theft of. (B) 7.e.—For purposes of Chapter Three. Therefore. "pattern of misconduct involving cultural heritage resources" means two or more separate instances of offense conduct involving a cultural heritage resource that did not occur during the course of the offense (i.5 5. offenses committed for pecuniary gain include both monetary and barter transactions. "brandished" and "dangerous weapon" have the meaning given those terms in Application Note 1 of the Commentary to §1B1. or in anticipation of receipt of. 2009 Pecuniary Gain and Commercial Purpose Enhancement Under Subsection (b)(4).—For purposes of subsection (b)(4). as well as activities designed to increase gross revenue. or (B) the offense 8.3 (Relevant Conduct)).. Multiple Counts.— (A) "For Pecuniary Gain".1 (Application Instructions). Offense conduct involving a cultural heritage resource may be considered for purposes of subsection (b)(5) regardless of whether the defendant was convicted of that conduct. 9. Part A (Criminal History).—For purposes of subsection (b)(6). an upward departure may be warranted. Part D (Multiple Counts). Dangerous Weapons Enhancement Under Subsection (b)(6). an upward departure may be warranted if (A) in addition to cultural heritage resources.—The acquisition of cultural heritage resources for display to the public. whether for a fee or donation and whether by an individual or an organization.—A conviction taken into account under subsection (b)(5) is not excluded from consideration of whether that conviction receives criminal history points pursuant to Chapter Four. shall be considered to involve a "commercial purpose" for purposes of subsection (b)(4). including a governmental entity. damage to.2(d). Commercial Purpose. (B) 6. anything of value. that did not occur during the course of the instant offense of conviction and all relevant conduct under §1B1. a private non-profit organization.— (A) Definition. GUIDELINES M ANUAL November 1. In such cases. "for pecuniary gain" means for receipt of. multiple counts involving cultural heritage offenses covered by this guideline are grouped together under subsection (d) of §3D1.

2002 (see Appendix C. For additional statutory provision(s). Aggravated Identity Theft (a) If the defendant was convicted of violating 18 U. possession. November 1.—Section 1028A of title 18.S. 18 U. § 1028A also requires a term of imprisonment imposed under this section to run consecutively to any other term of imprisonment.C.November 1. 2006 (see Appendix C.S. see Appendix A (Statutory Index).S.S. amendment 700).S.C. provides that in the case of multiple convictions under 18 U. Except as provided in subdivision (B). § 1028A. the Statue of Liberty or the Liberty Bell). Commentary Statutory Provision: 18 U.— (A) In General. See the Commentary to §5G1. § 1028A is the term required by that statute. Multiple Convictions Under Section 1028A. Imposition of Sentence.2 (Sentencing on Multiple Counts of Conviction) for guidance regarding imposition of sentence on multiple counts of 18 U.g.—Do not apply Chapters Three (Adjustments) and Four (Criminal History and Criminal Livelihood) to any offense sentenced under this 3. including any such enhancement that would apply based on conduct for which the defendant is accountable under §1B1.6. the guideline sentence is the term of imprisonment required by statute. § 1028A. § 1028(d)(7). § 1028A.C. Amended effective November 1. – 107 – . amendment 638). A sentence under this guideline accounts for this factor for the underlying offense of conviction. Inapplicability of Chapter Two Enhancement. "Means of identification" has the meaning given that term in 18 U. do not apply any specific offense characteristic for the transfer.C. § 1028A. in the discretion of the court. Application Notes: 1.—Section 1028A(b)(4) of title 18. Historical Note: Effective November 1.3 (Relevant Conduct). Accordingly. Inapplicability of Chapters Three and Four. Chapters Three (Adjustments) and Four (Criminal History and Criminal Livelihood) shall not apply to that count of conviction. United State Code. §2B1. the terms of imprisonment imposed on such counts may. provides a mandatory term of imprisonment.C.. (B) 2.C.C.S.S. 2009 GUIDELINES MANUAL §2B1.6 involved a cultural heritage resource that has profound significance to cultural identity (e. with each other.—If a sentence under this guideline is imposed in conjunction with a sentence for an underlying offense. run concurrently. the guideline sentence for a defendant convicted under 18 U. in whole or in part. United State Code. amendment 685). 2007 (see Appendix C. or use of a means of identification when determining the sentence for the underlying offense.

* * * * * 2.000 Increase in Level no increase add 1 add 2 add 3 add 4 add 5 add 6 add 7 add 8. If a firearm. Historical Note: Effective November 1.500.500.000 More than $1. or controlled substance was taken. or 12.500 More than $10. if a residence. increase the offense level as follows: Loss (Apply the Greatest) (A) (B) (C) (D) (E) (F) (G) (H) (I) (3) $2.500.000 More than $250.000 More than $800. Burglary of a Residence or a Structure Other than a Residence (a) Base Offense Level: (1) (2) (b) 17. (4) Commentary – 108 – . or if the taking of such item was an object of the offense.2.000.500 or less More than $2. If a dangerous weapon (including a firearm) was possessed.000 More than $5. increase by 2 levels. amendment 677).§2B1. destructive device. BURGLARY AND TRESPASS §2B2.1 (Procedure for Determining Offense Level on Multiple Counts) and 5G1. increase by 2 levels. 2005 (see Appendix C. Specific Offense Characteristics (1) (2) If the offense involved more than minimal planning. If the loss exceeded $2.1. if a structure other than a residence. Such offenses are excluded from application of those chapters because the guideline sentence for each offense is determined only by the relevant statute. 2009 guideline.000 More than $2.000 More than $50.6 GUIDELINES M ANUAL November 1. increase by 1 level. See §§3D1.

amendment 617). checking the area to make sure no witnesses were present would not alone constitute more than minimal planning. More than Minimal Planning. Subsection (b)(4) does not apply to possession of a dangerous weapon (including a firearm) that was stolen during the course of the offense. (E) at a residence." and "dangerous weapon" are defined in the Commentary to §1B1. For additional statutory provision(s). Background: The base offense level for residential burglary is higher than for other forms of burglary because of the increased risk of physical and psychological injury. amendments 315 and 361). 3. 1987.November 1. November 1. other than conduct to which §3C1. amendment 481). amendments 315 and 361). 1988 (see Appendix C. damaged. By contrast. amendment 481). Application Notes: 1. (C) on a vessel or aircraft of the United States. Trespass (a) (b) Base Offense Level: 4 Specific Offense Characteristics (1) If the trespass occurred (A) at a secure government facility. 2113(a). 1987. amended effective June 15. (B) at a nuclear energy facility.C. was deleted by consolidation with §2B2.—"More than minimal planning" means more planning than is typical for commission of the offense in a simple form. 2001 (see Appendix C.S." "destructive device. 2115. unless it is clear that each instance was purely opportune.1 effective November 1. Weapon use would be a ground for upward departure. November 1. 1989 (see Appendix C. 1989 (see Appendix C. 1988 (see Appendix C. Historical Note: Effective November 1. §§ 1153. and November 1.1 (Application Instructions). 1988 (see Appendix C. §2B2. "Loss" means the value of the property taken. §2B2.1 (Obstructing or Impeding the Administration of Justice) applies. or destroyed. amendment 107). would constitute more than minimal planning.3.2 (Burglary of Other Structures).2. obtaining building plans to plot a particular course of entry. is a specific offense characteristic because use of a weapon (including to threaten) ordinarily would make the offense robbery. but not use. 1993 (see Appendix C. 1990 (see Appendix C. (F) at – 109 – . 2117. 2118(b).3 Statutory Provisions: 18 U. 2. "More than minimal planning" shall be considered to be present in any case involving repeated acts over a period of time. June 15. November 1. amendments 105 and 106). 4. For example. "Firearm. see Appendix A (Statutory Index). "More than minimal planning" also exists if significant affirmative steps were taken to conceal the offense. (D) in a secure area of an airport or a seaport. 1990 (see Appendix C. Amended effective January 15. Weapon possession. 1993 (see Appendix C. November 1. effective November 1. November 1. amendment 13). 2009 GUIDELINES MANUAL §2B2. [Deleted] Historical Note: Section 2B2. amendment 12). amendment 11). or disabling an alarm system.

public health or safety. and Fraud) corresponding to that amount.1 (Application Instructions). "Critical infrastructure" means systems and assets vital to national defense. increase by 2 levels.1 (Theft.C. 42 U. Property Destruction. storage. financing and banking systems. – 110 – .S. 1036.C.3 GUIDELINES M ANUAL November 1. or national security. or any combination of those matters. or (ii) by or for a government entity in furtherance of the administration of justice. national security. increase by 2 levels. Examples of critical infrastructures include gas and oil production. transportation systems and services (including highways. airlines. "Firearm" and "dangerous weapon" are defined in the Commentary to §1B1. A critical infrastructure may be publicly or privately owned. or (ii) exceeded $5.000 but did not exceed $5. national defense. or local) punishable by imprisonment for a term exceeding one year. water supply systems. and delivery systems. and airports). police.§2B2. and rescue services).—For purposes of this guideline: "Airport" has the meaning given that term in section 47102 of title 49. emergency services (including medical. § 7270b. and government operations that provide essential services to the public. 38 U. state. "Felony offense" means any offense (federal. fire. § 2413. If (A) the offense involved invasion of a protected computer. Application Notes: 1. increase by the number of levels from the table in §2B1. telecommunications networks.1 (Attempt. United States Code.C.S. if the resulting offense level is greater than that determined above. Solicitation. mass transit. electrical power delivery systems. or Conspiracy) in respect to that felony offense.S. apply §2X1. 2009 Arlington National Cemetery or a cemetery under the control of the National Cemetery Administration. Definitions. economic security. 2199. (3) (c) Cross Reference (1) If the offense was committed with the intent to commit a felony offense. or (G) on a computer system used (i) to maintain or operate a critical infrastructure. see Appendix A (Statutory Index). For additional statutory provision(s). Commentary Statutory Provisions: 18 U.000. §§ 1030(a)(3). and (B) the loss resulting from the invasion (i) exceeded $2. increase by 1 level. whether or not a criminal charge was brought or a conviction was obtained. (2) If a dangerous weapon (including a firearm) was possessed.000.

amendment 551). "Seaport" has the meaning given that term in 18 U. increase by 7 levels.1. increase by 5 levels.1 "Government entity" has the meaning given that term in 18 U. November 1. Robbery (a) (b) Base Offense Level: 20 Specific Offense Characteristics (1) If the property of a financial institution or post office was taken. § 1030(e)(2)(A) or (B). amendments 699 and 703). increase the offense level according to the seriousness of the injury: Degree of Bodily Injury (A) (B) Bodily Injury Serious Bodily Injury – 111 – (2) (3) Increase in Level add 2 add 4 . increase by 4 levels. 2007 (see Appendix C. § 1030(e)(9). 2003 (see Appendix C.C. AND BLACKMAIL §2B3. Valuation of loss is discussed in the Commentary to §2B1. If any victim sustained bodily injury. Property Destruction. Background: Most trespasses punishable under federal law involve federal lands or property.S. an enhancement is provided for trespass at a residence. The trespass section provides an enhancement for offenses involving trespass on secure government installations (such as nuclear facilities) and other locations (such as airports and seaports) to protect a significant federal interest.1 (Theft. 2001 (see Appendix C. November 1. November 1. (D) if a dangerous weapon was otherwise used. amendment 654).C.November 1. or if the taking of such property was an object of the offense. increase by 2 levels. (B) if a firearm was otherwise used. (C) if a firearm was brandished or possessed. ROBBERY. 2002 (see Appendix C. November 1. * * * * * 3. 1997 (see Appendix C. increase by 2 levels. (E) if a dangerous weapon was brandished or possessed. or (F) if a threat of death was made. amendments 108 and 109). 1989 (see Appendix C. amendment 617). "Protected computer" means a computer described in 18 U. Amended effective November 1.S. increase by 3 levels. and Fraud). Additionally.S. (A) If a firearm was discharged. increase by 6 levels. EXTORTION.C. November 1. amendment 637). § 26. 2. 1987. Historical Note: Effective November 1. 2009 GUIDELINES MANUAL §2B3.

or If the degree of injury is between that specified in subdivisions (B) and (C). add 5 levels.000 More than $5. (5) (6) (7) Cross Reference (1) If a victim was killed under circumstances that would constitute murder under 18 U. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States. destructive device. 2119.S. 2113.C. or if the taking of such item was an object of the offense. Commentary Statutory Provisions: 18 U.000 More than $50. or (B) if any person was physically restrained to facilitate commission of the offense or to facilitate escape.000 More than $800. 2114.1 (First Degree Murder). add 3 levels. increase by 4 levels. – 112 – .000 More than $2. increase the offense level as follows: Loss (Apply the Greatest) (A) (B) (C) (D) (E) (F) (G) (H) (c) $10.000 or less More than $10. 2118(a). (E) Provided. that the cumulative adjustments from (2) and (3) shall not exceed 11 levels. however.1 (C) (D) GUIDELINES M ANUAL November 1. increase by 1 level.§2B3. see Appendix A (Statutory Index). If the loss exceeded $10. increase by 2 levels.000. apply §2A1.000 More than $250. 2009 Permanent or Life-Threatening Bodily Injury add 6 If the degree of injury is between that specified in subdivisions (A) and (B). or controlled substance was taken.S.500.C. If a firearm.500. (4) (A) If any person was abducted to facilitate commission of the offense or to facilitate escape.000.000 Increase in Level no increase add 1 add 2 add 3 add 4 add 5 add 6 add 7. §§ 1951.000 More than $1. For additional statutory provision(s). increase by 2 levels. If the offense involved carjacking.

The combined adjustments for weapon involvement and injury are limited to a maximum enhancement of 11 levels. because of the relatively high base offense level for robbery. physical injury." "destructive device. For example." "abducted. an object shall be considered to be a dangerous weapon for purposes of subsection (b)(2)(E) if (A) the object closely resembles an instrument capable of inflicting death or serious bodily injury. "Carjacking" means the taking or attempted taking of a motor vehicle from the person or presence of another by force and violence or by intimidation. The court should consider that the intent of this provision is to provide an increased offense level for cases in which the offender(s) engaged in conduct that would instill in a reasonable person. 5. Accordingly. the defendant does not have to state expressly his intent to kill the victim in order for the enhancement to apply. or "Give me the money or you are dead" would constitute a threat of death." "otherwise used. 4.1 (Assault with Intent to Commit Murder. and unlawful restraint sometimes occur during a robbery. its importance was small compared to that of the other harm involved. Consistent with Application Note 1(d)(ii) of §1B1. may be in the form of an oral or written statement. see §2A2.1 (Application Instructions). an increase of 1 or 2 levels brings about a considerable increase in sentence length in absolute terms.g. "Loss" means the value of the property taken..1 Application Notes: 1. "Give me your money or else (where the defendant draws his hand across his throat in a slashing motion)". an oral or written demand using words such as "Give me the money or I will kill you"." "brandished." "serious bodily injury. a defendant wrapped a hand in a towel during a bank robbery to create the appearance of a gun). 3. 2. "Firearm. damaged. or combination thereof. gesture." "permanent or life-threatening bodily injury. a fear of death. If the defendant intended to murder the victim. who is a victim of the offense. the gradations for property loss increase more slowly than for simple property offenses. an upward departure may be warranted. "Give me the money or I will shoot you". 6." and "physically restrained" are defined in the Commentary to §1B1. 2009 GUIDELINES MANUAL §2B3." as used in subsection (b)(2)(F). or destroyed.1 (Application Instructions).November 1." "dangerous weapon. "A threat of death. Background: Possession or use of a weapon. act. or (B) the defendant used the object in a manner that created the impression that the object was an instrument capable of inflicting death or serious bodily injury (e. – 113 – . The guideline provides for a range of enhancements where these factors are present. Moreover. Attempted Murder). "Give me the money or I will pull the pin on the grenade I have in my pocket"." "bodily injury. Although in pre-guidelines practice the amount of money taken in robbery cases affected sentence length. Accordingly.

If the greater of the amount demanded or the loss to the victim exceeded $10. increase by the corresponding number of levels from the table in §2B3. amendment 601). (III) kidnapping. or locked up. increase by 3 levels. increase by 3 levels. or (B) If (i) the offense involved preparation to carry out a threat of (I) death. or (v) if a dangerous weapon was brandished or possessed.1 GUIDELINES M ANUAL November 1. §2B3. November 1.2. Historical Note: Effective November 1. national defense. Extortion by Force or Threat of Injury or Serious Damage (a) (b) Base Offense Level: 18 Specific Offense Characteristics (1) If the offense involved an express or implied threat of death. November 1. Amended effective June 15. increase by 4 levels. increase by 2 levels. 2009 The guideline provides an enhancement for robberies where a victim was forced to accompany the defendant to another location. November 1. 1988 (see Appendix C. (4) If any victim sustained bodily injury. (IV) product tampering.1(b)(7). amendment 365). (A)(i) If a firearm was discharged. 1987. amendments 314. November 1. 2000 (see Appendix C. (II) serious bodily injury. or national security. amendments 545 and 552). 1997 (see Appendix C. amendment 617). or (V) damage to a computer system used to maintain or operate a critical infrastructure. increase by 6 levels. amendments 14 and 15). 1990 (see Appendix C. increase by 5 levels. (iii) if a firearm was brandished or possessed. 2001 (see Appendix C. (ii) if a firearm was otherwise used. 1989 (see Appendix C. amendment 483). (iv) if a dangerous weapon was otherwise used. bound. or was physically restrained by being tied. 1991 (see Appendix C. increase by 7 levels. or – 114 – . and 361). bodily injury. November 1. November 1. or (ii) the participant(s) otherwise demonstrated the ability to carry out a threat described in any of subdivisions (i)(I) through (i)(V). add 3 levels. 315.000. or by or for a government entity in furtherance of the administration of justice. or kidnapping. amendments 110 and 111). November 1. increase the offense level according to the seriousness of the injury: Degree of Bodily Injury (A) (B) (C) (D) Increase in Level add 2 add 4 add 6 (2) (3) Bodily Injury Serious Bodily Injury Permanent or Life-Threatening Bodily Injury If the degree of injury is between that specified in subdivisions (A) and (B). 1993 (see Appendix C.§2B3.

and airports).S." "permanent or life-threatening bodily injury. – 115 – . (2) Commentary Statutory Provisions: 18 U. § 1030(e)(9). economic security. increase by 4 levels. electrical power delivery systems. fire. "Critical infrastructure" means systems and assets vital to national defense. and government operations that provide essential services to the public. 2009 GUIDELINES MANUAL §2B3." "physically restrained.C.1 (Application Instructions).November 1. For additional statutory provision(s)." and "serious bodily injury" have the meaning given those terms in Application Note 1 of the Commentary to §1B1. mass transit. (c) Cross References (1) If a victim was killed under circumstances that would constitute murder under 18 U." "firearm. (5) (A) If any person was abducted to facilitate commission of the offense or to facilitate escape. public health or safety.S. Attempted Murder) if the resulting offense level is greater than that determined above. apply §2A2. that the cumulative adjustments from (3) and (4) shall not exceed 11 levels. If the offense was tantamount to attempted murder. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States." "otherwise used. financing and banking systems.C. increase by 2 levels.—For purposes of this guideline: "Abducted. transportation systems and services (including highways. water supply systems. or (B) if any person was physically restrained to facilitate commission of the offense or to facilitate escape. however.1 (First Degree Murder). 877. A critical infrastructure may be publicly or privately owned. telecommunications networks. national security. and delivery systems. Application Notes: 1. Provided. 1030(a)(7).1 (Assault with Intent to Commit Murder." "bodily injury. and rescue services).S.2 (E) If the degree of injury is between that specified in subdivisions (B) and (C). 876. airlines. Examples of critical infrastructures include gas and oil production. storage. or any combination of those matters. 1951." "dangerous weapon. Definitions. add 5 levels. emergency services (including medical.C. "Government entity" has the meaning given that term in 18 U. see Appendix A (Statutory Index). police." "brandished. apply §2A1. §§ 875(b).

C. or a threat to kidnap a person accompanied by information showing study of that person’s daily routine).§2B3. such as "pay up or else. amendment 366). It provides for a maximum term of imprisonment of twenty years. and conspiracy to extort. 1997 (see Appendix C. 6." as used in subsection (b)(2).S. amendment 601). November 1. § 876 involve the use of the United States mails to communicate threats.g. If the offense involved the threat of death or serious bodily injury to numerous victims (e.C. The combined adjustments for weapon involvement and injury are limited to a maximum enhancement of 11 levels. 1989 (see Appendix C. 1990 (see Appendix C.. an extortionate demand containing a threat to tamper with a consumer product accompanied by a workable plan showing how the product’s tamper-resistant seals could be defeated.S.C." or a threat to cause labor problems. – 116 – . amendment 586). 2009 This guideline applies if there was any threat. §§ 875-877 prohibit communication of extortionate demands through various means.. "Extortion under color of official right. November 1. prohibits extortion. Even if the threat does not in itself imply violence. ordinarily should be treated under this section. GUIDELINES M ANUAL November 1. November 1. in the case of a plan to derail a passenger train or poison consumer products). Offenses Involving Public Officials. 1993 (see Appendix C. amendments 112. Subsection (b)(3)(B) addresses such cases. an extortionate demand may be accompanied by conduct that does not qualify as a display of a dangerous weapon under subsection (b)(3)(A)(v) but is nonetheless similar in seriousness.2 2. 5. § 877 involve mailing threatening communications from foreign countries. demonstrating the defendant’s preparation or ability to carry out the threatened harm (e. § 1951. attempted extortion. § 1030(a)(7) involving a threat to impair the operation of a "protected computer. 7.1 unless there is use of force or a threat that qualifies for treatment under this section. 18 U. such as to drive an enterprise out of business. Violations of 18 U. Amended effective November 1. 8. 3. amendment 551). 4. or a threat to a family member of the victim. amendment 479). the possibility of violence or serious adverse consequences may be inferred from the circumstances of the threat or the reputation of the person making it. November 1. This guideline also applies to offenses under 18 U. 1991 (see Appendix C. that reasonably could be interpreted as one to injure a person or physically damage property.S. the cost of defensive measures taken in direct response to the offense). 2003 (see Appendix C. while violations of 18 U. amendment 316). "Loss to the victim. 18 U. an upward departure may be warranted." Historical Note: Effective November 1." which usually is solicitation of a bribe by a public official. and 303). 1998 (see Appendix C..S.g.S. § 875 involve threats or demands transmitted by interstate commerce. An ambiguous threat. November 1. Offenses Involving Criminal Enterprises and Racketeering. Violations of 18 U. 113.C.S.C. express or implied. 2000 (see Appendix C.C. an upward departure may be warranted. means any demand paid plus any additional consequential loss from the offense (e. November 1.g. Guidelines for bribery involving public officials are found in Part C. The maximum penalty under these statutes varies from two to twenty years. Background: The Hobbs Act. 1987. or any comparably serious threat. November 1. If the offense involved organized criminal activity. is covered under §2C1. amendment 654). Certain other extortion offenses are covered under the provisions of Part E. In certain cases.

the maximum term of imprisonment authorized for blackmail is one year. 1993 (see Appendix C.2 (Extortion by Force or Threat of Injury or Serious Damage). § 873.000 but did not exceed $5. 1951. Historical Note: Effective November 1. Application Note: 1.C. amendment 679). November 1. Fraud Involving the Deprivation of the Intangible Right to Honest Services of Public Officials. * * * * * – 117 – . "Blackmail" (18 U. 875-877. Amended effective November 1. Extortionate threats to injure a reputation. Background: Under 18 U.000. apply §2C1. and Fraud) corresponding to that amount. 1987.3 §2B3.S. increase by 1 level.1 (Offering. increase by the number of levels from the table in §2B1.S. 2001 (see Appendix C.1 (Theft.C. amendment 114). which carry higher maximum sentences. For additional statutory provision(s). §§ 875-877. may also be prosecuted under 18 U. amendment 617). Conspiracy to Defraud by Interference with Governmental Functions).S. 2009 GUIDELINES MANUAL §2B3. §§ 873. 2005 (see Appendix C. or (B) exceeded $5. 1989 (see Appendix C. (c) Cross References (1) If the offense involved extortion under color of official right. Soliciting. see Appendix A (Statutory Index). If the offense involved extortion by force or threat of injury or serious damage. Extortion Under Color of Official Right. or other threats that are less serious than those covered by §2B3.2. Property Destruction.C. Giving. November 1. Blackmail and Similar Forms of Extortion (a) (b) Base Offense Level: 9 Specific Offense Characteristic (1) If the greater of the amount obtained or demanded (A) exceeded $2. apply §2B3. Commentary (2) Statutory Provisions: 18 U.C.000. or Receiving a Bribe. § 873) is defined as a threat to disclose a violation of United States law unless money or some other item of value is given. This section applies only to blackmail and similar forms of extortion where there clearly is no threat of violence to person or property.S.3.November 1. amendment 479). November 1.

increase by 2 levels. (Apply the greater) If— (A) the defendant derived more than $1.C. §§ 53. increase by the number of levels from the table in §2B1.C. increase by 4 levels. (2) (B) If the resulting offense level determined under subdivision (A) or (B) is less than level 24.1 (Theft. 49 U.C. if any such officials are involved. increase to level 24. Offenses Involving Public Officials. For additional statutory provision(s).S.000 but did not exceed $5. Application Notes: 1.S. 26 U. or (B) exceeded $5. (2).000.C. §§ 215.Organizations (1) In lieu of the pecuniary loss under subsection (a)(3) of §8C2. 225. state. 54. Bribery in Procurement of Bank Loan and Other Commercial Bribery (a) (b) Base Offense Level: 8 Specific Offense Characteristics (1) If the greater of the value of the bribe or the improper benefit to be conferred (A) exceeded $2. and Fraud) corresponding to that amount. foreign governments.§2B4.1 4.4 (Base Fine). See Part C.C.000 in gross receipts from one or more financial institutions as a result of the offense. Commentary Statutory Provisions: 18 U.000. or local government.S. 42 U. §§ 1395nn(b)(1). This guideline covers commercial bribery offenses and kickbacks that do not involve officials of federal. (c) Special Instruction for Fines . GUIDELINES M ANUAL November 1. or public international organizations. 2009 COMMERCIAL BRIBERY AND KICKBACKS §2B4. use the greatest of: (A) the value of the unlawful payment. increase by 1 level. see Appendix A (Statutory Index).000. § 11902. §§ 9012(e). Property Destruction. 224. – 118 – . (B) the value of the benefit received or to be received in return for the unlawful payment.S. or (C) the consequential damages resulting from the unlawful payment. 1396h(b)(1).1. 41 U. or the offense substantially jeopardized the safety and soundness of a financial institution. 9042(d).S.(2).

disability. Soliciting.—"Gross receipts from the offense" includes all property. exceeded $1. § 225 (relating to a continuing financial crimes enterprise). the offense level is that applicable to the underlying series of offenses comprising the "continuing financial crimes enterprise.S. (D) was so depleted of its assets as to be forced to merge with another institution in order to continue active operations.000. Giving.C. §§ 20. or other benefits (e. or (E) was placed in substantial jeopardy of any of subdivisions (A) through (D) of this note. savings (building and loan) association. whether or not insured by the federal government. The base offense level is to be enhanced based upon the value of the unlawful payment or the value of the action to be taken or effected in return for the unlawful payment.1 (Offering. unions. insurance company. Enhancement for Substantially Jeopardizing the Safety and Soundness of a Financial Institution under Subsection (b)(2)(B). pension funds of large national and international organizations.S. any state or foreign bank. and 1014. See Commentary to §2C1. Definition. 2009 GUIDELINES MANUAL §2B4. medical or hospital insurance association. mutual fund. See 18 U.C. futures commodity merchants and commodity pool operators registered. with the Commodity Futures Trading Commission. (B) substantially reduced benefits to pensioners or insureds.1 2. is defined to include any institution described in 18 U. 656. credit union. medical. trust company. and associations that undertake to provide pension.— (A) In General. or required to be registered. the institution (A) became insolvent.—For purposes of subsection (b)(2)(A)." 6. Gross Receipts Enhancement under Subsection (b)(2)(A).November 1.000. 657.. 4." as used above.. If the defendant is convicted under 18 U. and any similar entity. rather than to all participants. which is obtained directly or indirectly as a result of such offense. 1005-1007. (B) 5. an offense shall be considered to have substantially jeopardized the safety and soundness of a financial institution if. real or personal. payment. § 982(a)(4).g. tangible or intangible. union or employee pension fund.—For purposes of subsection (b)(2)(B). any health. primarily include large pension funds that serve many individuals (e. investment company. The "value of the improper benefit to be conferred" refers to the value of the action to be taken or effected in return for the bribe. the defendant shall be considered to have derived more than $1. Fraud Involving the Deprivation of the Intangible Right to Honest Services of Public Officials. Extortion Under Color of Official Right. Conspiracy to Defraud by Interference with Governmental Functions).000 in gross receipts if the gross receipts to the defendant individually. with the Securities and Exchange Commission. medical or hospitalization insurance) to large numbers of persons." as used in this guideline.S. or hospital insurance association.000. (C) was unable on demand to refund fully any deposit. 3. Background: This guideline applies to violations of various federal bribery statutes that do not involve governmental officials. and corporations doing substantial interstate business). or required to be registered.g. brokers and dealers registered. or Receiving a Bribe.C. whichever is greater. "Union or employee pension fund" and "any health. or investment. as a consequence of the offense. "Financial institution. – 119 – .

sports bribery. 2001 (see Appendix C. § 215. 2002 (see Appendix C.C.C. Amended effective November 1. This guideline also applies to violations of law involving bribes and kickbacks in expenses incurred for a presidential nominating convention or presidential election campaign. for example. in a broader form. If a gambler paid a player $5.C. If that amount could not be estimated. This guideline also applies to making prohibited payments to induce the award of subcontracts on federal projects for which the maximum term of imprisonment authorized was recently increased from two to ten years. Thus. Subsection (b)(2)(A) implements. Historical Note: Effective November 1. this guideline considers not only the amount of the bribe but also the value of the action received in return.S. November 1.C.C. These offenses are prohibited under 26 U.§2B4. * * * * * – 120 – . amendment 468). 53-54. Violations of 42 U. amendments 639 and 646). in increasing the offense level. 1992 (see Appendix C. amendments 364 and 422). 1987.000 bribe to approve a $250. amendment 553). the value of the action to the gambler would be the amount that he and his confederates won or stood to gain. November 1. 1991 (see Appendix C. if a bank officer agreed to the offer of a $25. which apply to candidates for President and Vice President whose campaigns are eligible for federal matching funds. would use the greater of the $25.000 bribe.S. As with non-commercial bribery.S. This guideline also applies to violations of 18 U. November 1. §§ 9012(e) and 9042(d). 1990 (see Appendix C. 2009 One of the more commonly prosecuted offenses to which this guideline applies is offering or accepting a fee in connection with procurement of a loan from a financial institution in violation of 18 U. November 1. November 1. November 1. 41 U.000 loan under terms for which the applicant would not otherwise qualify.000 to shave points in a nationally televised basketball game.S. the amount of the bribe would be used to determine the appropriate increase in offense level. involve the offer or acceptance of a payment to refer an individual for services or items paid for under the Medicare program. amendment 617).S. 1997 (see Appendix C. §§ 51. as well as certain violations of the Interstate Commerce Act. amendment 317). Subsection (b)(2)(B) implements the instruction to the Commission in section 2507 of Public Law 101-647. the instruction to the Commission in section 961(m) of Public Law 101-73.1 GUIDELINES M ANUAL November 1. and the savings in interest over the life of the loan compared with alternative loan terms. Similar provisions in 42 U. §§ 1395nn(b)(1) and (b)(2). the court.S. amendment 666). § 224.C. §§ 1396h(b)(1) and (b)(2) cover the offer or acceptance of a payment for referral to the Medicaid program. 2004 (see Appendix C.

(2) (3) (4) (5) Commentary Statutory Provisions: 18 U. manufactured.1 5.November 1.S. If the resulting offense level is less than level 13.1 (Theft. 477. Application Notes: 1. as is a genuine instrument that has been falsely altered (such as a genuine $5 bill that has been altered to appear to be a genuine $100 bill). Amended effective November 1. Property Destruction. 1993 (see Appendix C. see Appendix A (Statutory Index). For example. or (iii) a feature or device essentially identical to a distinctive counterfeit deterrent.—For purposes of this guideline: "Counterfeit" refers to an instrument that has been falsely made. increase by the number of levels from the table in §2B1. and the offense level determined under that subsection is less than level 15. or (B) controlled or possessed (i) counterfeiting paper similar to a distinctive paper. §§ 470-474A. For additional statutory provision(s).000. – 121 – . increase by 2 levels.C. or altered. amendment 481). Offenses Involving Counterfeit Bearer Obligations of the United States (a) (b) Base Offense Level: 9 Specific Offense Characteristics (1) If the face value of the counterfeit items (A) exceeded $2. or possessed or had custody of or control over a counterfeiting device or materials used for counterfeiting. If subsection (b)(2)(A) applies. If the defendant (A) manufactured or produced any counterfeit obligation or security of the United States. 476. or (B) exceeded $5. increase by 2 levels. COUNTERFEITING AND INFRINGEMENT OF COPYRIGHT OR TRADEMARK Historical Note: Effective November 1. 1987. If any part of the offense was committed outside the United States.1. increase to level 15. increase by 1 level. increase by 2 levels. 2009 GUIDELINES MANUAL §2B5. increase to level 13. If a dangerous weapon (including a firearm) was possessed in connection with the offense. an instrument that has been falsely made or manufactured in its entirety is "counterfeit". 500. §2B5.000 but did not exceed $5.000. Definitions. (ii) genuine United States currency paper from which the ink or other distinctive counterfeit deterrent has been completely or partially removed. 501. 1003. and Fraud) corresponding to that amount.

and Fraud) corresponding to that amount. was deleted by consolidation with §2F1. 2009 (see Appendix C. rather than merely passes. and American Samoa. food stamps. 1995 (see Appendix C. § 474A(c)(2) and (1). bearer bonds and other items that generally could be described as bearer obligations of the United States. amendment 587). amendment 513). Inapplicability to Certain Obviously Counterfeit Items. amendment 115). increase by 1 level.000. respectively. Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States)..000 but did not exceed $5. 1989 (see Appendix C. November 1.S. the counterfeit items. "United States" means each of the fifty states. Guam. 1987. Historical Note: Effective November 1. 1997 (see Appendix C. amendment 731).2. 2.e. November 1.—Subsection (b)(2)(A) does not apply to persons who produce items that are so obviously counterfeit that they are unlikely to be accepted even if subjected to only minimal scrutiny. amendments 595 and 605). 2009 "Distinctive counterfeit deterrent" and "distinctive paper" have the meaning given those terms in 18 U. 1987. amendment 116). that are not made out to a specific payee. November 1. §2B5. Amended effective January 15. amendment 17) and November 1. Criminal Infringement of Copyright or Trademark (a) (b) Base Offense Level: 8 Specific Offense Characteristics (1) If the infringement amount (A) exceeded $2.2 (Forgery. [Deleted] Historical Note: Section 2B5. the United States Virgin Islands.000. 1988 (see Appendix C.1 (Theft. the Northern Mariana Islands. November 1. in a broader form. postage stamps. Background: Possession of counterfeiting devices to copy obligations (including securities) of the United States is treated as an aggravated form of counterfeiting because of the sophistication and planning involved in manufacturing counterfeit obligations and the public policy interest in protecting the integrity of government obligations. 3.1 GUIDELINES M ANUAL November 1. November 1. Similarly.— This guideline applies to counterfeiting of United States currency and coins. or (B) exceeded $5. amended effective January 15. 1998 (see Appendix C.§2B5. Subsection (b)(4) implements. November 1. 1993 (see Appendix C. the District of Columbia. – 122 – . 2001 (see Appendix C. Property Destruction. effective November 1. amendment 16). the Commonwealth of Puerto Rico. the instruction to the Commission in section 110512 of Public Law 103-322. 1989 (see Appendix C. increase by the number of levels from the table in §2B1. 2000 (see Appendix C. amendment 481). i.1 effective November 1. amendment 554).C. November 1.3. amendments 617 and 618). §2B5. an enhancement is provided for a defendant who produces. 1988 (see Appendix C. treasury bills. Applicability to Counterfeit Bearer Obligations of the United States.

C. importation. including other protected works.—For purposes of this guideline: "Circumvention devices" are devices used to perform the activity described in 17 U. increase to level 14. §§ 506(a). §§ 2318-2320. If the (A) offense involved the manufacture. If the offense was not committed for commercial advantage or private financial gain. – 123 – . If the resulting offense level is less than level 12.S. decrease by 2 levels. increase by 2 levels. "Work being prepared for commercial distribution" has the meaning given that term in 17 U. "Commercial advantage or private financial gain" means the receipt. If the resulting offense level is less than level 14. "Uploading" means making an infringing item available on the Internet or a similar electronic bulletin board with the intent to enable other persons to (A) download or otherwise copy the infringing item. Application Notes: 1. increase to level 12. publication.C.3 (2) If the offense involved the display. "Infringing item" means the item that violates the copyright or trademark laws. or (B) defendant was convicted under 17 U.C. or (B) have access to the infringing item. or uploading of infringing items.C. "Uploading" does not include merely downloading or installing an infringing item on a hard drive on a defendant’s personal computer unless the infringing item is an openly shared file. 1201. or (B) possession of a dangerous weapon (including a firearm) in connection with the offense.November 1. Definitions.S. including by storing the infringing item as an openly shared file. 1204.S. 2511.S.S. "Infringed item" means the copyrighted or trademarked item with respect to which the crime against intellectual property was committed. increase by 2 levels. (3) (4) (5) Commentary Statutory Provisions: 17 U. see Appendix A (Statutory Index). increase by 2 levels. but the resulting offense level shall be not less than level 8. For additional statutory provision(s). If the offense involved (A) the conscious or reckless risk of death or serious bodily injury. or expectation of receipt. 2009 GUIDELINES MANUAL §2B5. or distribution of a work being prepared for commercial distribution. §§ 1201 and 1204 for trafficking in circumvention devices. of anything of value. § 506(a)(3). performance.C. reproduction. §§ 1201(a)(3)(A) and 1201(b)(2)(A). 18 U.

A case under 17 U. – 124 – . 2009 Determination of Infringement Amount.C. A case under 18 U. or (II) is a digital or electronic reproduction of the infringed item. the "infringed item" is the identifiable. including a case involving the unlawful recording of a musical performance in violation of 18 U. can. The offense involves the illegal interception of a satellite cable transmission in violation of 18 U. in a case involving any of the following: (i) The infringing item (I) is. charm. and (II) which. and the "infringed item" is the satellite transmission rather than the intercepting device. the "retail value of the infringed item" is the value of that item upon its initial commercial distribution. in any case not covered by subdivision (A) of this Application Note. § 2511. In such an offense. § 2318 or § 2320 that involves a counterfeit label. GUIDELINES M ANUAL November 1. (A) Use of Retail Value of Infringed Item. The retail value of the infringing item is difficult or impossible to determine without unduly complicating or prolonging the sentencing proceeding.S. container. publication. reproduction. would appear to a reasonably informed purchaser to be affixed to. or appears to a reasonably informed purchaser to be. (In a case involving such an offense. case. hangtag.C. §§ 1201 and 1204 in which the defendant used a circumvention device. the "retail value of the infringed item" is the price the user would have paid to access lawfully the copyrighted work. patch. badge.C. medallion. box. The retail price of the infringing item is not less than 75% of the retail price of the infringed item.S. performance. wrapper.—This note applies to the determination of the infringement amount for purposes of subsection (b)(1). multiplied by the number of infringing items. or packaging of any type or nature (I) that has not been affixed to. had it been so used. the "retail value of the infringed item" is the price the user of the transmission would have paid to lawfully receive that transmission. and the "infringed item" is the accessed work. § 2319A. documentation.—The infringement amount is the retail value of the infringing item. sticker. enclosing or accompanying an identifiable. emblem.) The retail value of the infringed item provides a more accurate assessment of the pecuniary harm to the copyright or trademark owner than does the retail value of the infringing item. multiplied by the number of infringing items. or does not enclose or accompany a good or service. genuine good or service.3 2.—The infringement amount is the retail value of the infringed item.§2B5.S. (ii) (iii) (iv) (v) (vi) (vii) (viii) (B) Use of Retail Value of Infringing Item. or distribution of a work being prepared for commercial distribution. The offense involves the display.S. In a case involving such an offense. genuine good or service. identical or substantially equivalent to the infringed item.C. In such a case.

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§2B5.3

(C)

Retail Value Defined.—For purposes of this Application Note, the "retail value" of an infringed item or an infringing item is the retail price of that item in the market in which it is sold. Determination of Infringement Amount in Cases Involving a Variety of Infringing Items.—In a case involving a variety of infringing items, the infringement amount is the sum of all calculations made for those items under subdivisions (A) and (B) of this Application Note. For example, if the defendant sold both counterfeit videotapes that are identical in quality to the infringed videotapes and obviously inferior counterfeit handbags, the infringement amount, for purposes of subsection (b)(1), is the sum of the infringement amount calculated with respect to the counterfeit videotapes under subdivision (A)(i) (i.e., the quantity of the infringing videotapes multiplied by the retail value of the infringed videotapes) and the infringement amount calculated with respect to the counterfeit handbags under subdivision (B) (i.e., the quantity of the infringing handbags multiplied by the retail value of the infringing handbags). Indeterminate Number of Infringing Items.—In a case in which the court cannot determine the number of infringing items, the court need only make a reasonable estimate of the infringement amount using any relevant information, including financial records.

(D)

(E)

3.

Application of §3B1.3.—If the defendant de-encrypted or otherwise circumvented a technological security measure to gain initial access to an infringed item, an adjustment under §3B1.3 (Abuse of Position of Trust or Use of Special Skill) may apply. Departure Considerations.—If the offense level determined under this guideline substantially understates or overstates the seriousness of the offense, a departure may be warranted. The following is a non-exhaustive list of factors that the court may consider in determining whether a departure may be warranted: (A) The offense involved substantial harm to the reputation of the copyright or trademark owner. The offense was committed in connection with, or in furtherance of, the criminal activities of a national, or international, organized criminal enterprise. The method used to calculate the infringement amount is based upon a formula or extrapolation that results in an estimated amount that may substantially exceed the actual pecuniary harm to the copyright or trademark owner.

4.

(B)

(C)

Background: This guideline treats copyright and trademark violations much like theft and fraud. Similar to the sentences for theft and fraud offenses, the sentences for defendants convicted of intellectual property offenses should reflect the nature and magnitude of the pecuniary harm caused by their crimes. Accordingly, similar to the loss enhancement in the theft and fraud guideline, the infringement amount in subsection (b)(1) serves as a principal factor in determining the offense level for intellectual property offenses. Subsection (b)(1) implements section 2(g) of the No Electronic Theft (NET) Act of 1997, Pub. L. 105–147, by using the retail value of the infringed item, multiplied by the number of
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November 1, 2009

infringing items, to determine the pecuniary harm for cases in which use of the retail value of the infringed item is a reasonable estimate of that harm. For cases referred to in Application Note 2(B), the Commission determined that use of the retail value of the infringed item would overstate the pecuniary harm or otherwise be inappropriate. In these types of cases, use of the retail value of the infringing item, multiplied by the number of those items, is a more reasonable estimate of the resulting pecuniary harm. Section 2511 of title 18, United States Code, as amended by the Electronic Communications Act of 1986, prohibits the interception of satellite transmission for purposes of direct or indirect commercial advantage or private financial gain. Such violations are similar to copyright offenses and are therefore covered by this guideline.
Historical Note: Effective November 1, 1987. Amended effective November 1, 1993 (see Appendix C, amendments 481 and 482); May 1, 2000 (see Appendix C, amendment 590); November 1, 2000 (see Appendix C, amendment 593); November 1, 2001 (see Appendix C, amendment 617); October 24, 2005 (see Appendix C, amendment 675); September 12, 2006 (see Appendix C, amendment 682); November 1, 2006 (see Appendix C, amendment 687); November 1, 2007 (see Appendix C, amendment 704); November 1, 2009 (see Appendix C, amendment 735).

§2B5.4. [Deleted]
Historical Note: Section 2B5.4 (Criminal Infringement of Trademark), effective November 1, 1987, was deleted by consolidation with §2B5.3 effective November 1, 1993 (see Appendix C, amendment 481).

*

*

*

*

*

6.

MOTOR VEHICLE IDENTIFICATION NUMBERS Altering or Removing Motor Vehicle Identification Numbers, or Trafficking in Motor Vehicles or Parts with Altered or Obliterated Identification Numbers (a) (b) Base Offense Level: 8 Specific Offense Characteristics (1) If the retail value of the motor vehicles or parts (A) exceeded $2,000 but did not exceed $5,000, increase by 1 level; or (B) exceeded $5,000, increase by the number of levels from the table in §2B1.1 (Theft, Property Destruction, and Fraud) corresponding to that amount. If the defendant was in the business of receiving and selling stolen property, increase by 2 levels. If the offense involved an organized scheme to steal vehicles or vehicle parts, or to receive stolen vehicles or vehicle parts, and the offense level as determined above is less than level 14, increase to level 14.

§2B6.1.

(2)

(3)

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§2B6.1

Commentary Statutory Provisions: 18 U.S.C. §§ 511, 553(a)(2), 2321. Application Notes: 1. Subsection (b)(3), referring to an "organized scheme to steal vehicles or vehicle parts, or to receive stolen vehicles or vehicle parts," provides an alternative minimum measure of loss in the case of an ongoing, sophisticated operation such as an auto theft ring or "chop shop." "Vehicles" refers to all forms of vehicles, including aircraft and watercraft. See Commentary to §2B1.1 (Theft, Property Destruction, and Fraud). The term "increase by the number of levels from the table in §2B1.1 (Theft, Property Destruction, and Fraud) corresponding to that amount," as used in subsection (b)(1), refers to the number of levels corresponding to the retail value of the motor vehicles or parts involved.

2.

Background: The statutes covered in this guideline prohibit altering or removing motor vehicle identification numbers, importing or exporting, or trafficking in motor vehicles or parts knowing that the identification numbers have been removed, altered, tampered with, or obliterated. Violations of 18 U.S.C. §§ 511 and 553(a)(2) carry a maximum of five years imprisonment. Violations of 18 U.S.C. § 2321 carry a maximum of ten years imprisonment.
Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendments 117-119); November 1, 1993 (see Appendix C, amendment 482); November 1, 2001 (see Appendix C, amendment 617).

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§2C1.1

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November 1, 2009

PART C - OFFENSES INVOLVING PUBLIC OFFICIALS AND VIOLATIONS OF FEDERAL ELECTION CAMPAIGN LAWS

Historical Note: Effective November 1, 1987. Amended effective January 25, 2003 (see Appendix C, amendment 648). Introductory Commentary to Part C, effective November 1, 1987, was deleted effective January 25, 2003 (see Appendix C, amendment 648), and November 1, 2003 (see Appendix C, amendment 656).

§2C1.1.

Offering, Giving, Soliciting, or Receiving a Bribe; Extortion Under Color of Official Right; Fraud Involving the Deprivation of the Intangible Right to Honest Services of Public Officials; Conspiracy to Defraud by Interference with Governmental Functions (a) Base Offense Level: (1) (2) (b) 14, if the defendant was a public official; or 12, otherwise.

Specific Offense Characteristics (1) If the offense involved more than one bribe or extortion, increase by 2 levels. If the value of the payment, the benefit received or to be received in return for the payment, the value of anything obtained or to be obtained by a public official or others acting with a public official, or the loss to the government from the offense, whichever is greatest, exceeded $5,000, increase by the number of levels from the table in §2B1.1 (Theft, Property Destruction, and Fraud) corresponding to that amount. If the offense involved an elected public official or any public official in a high-level decision-making or sensitive position, increase by 4 levels. If the resulting offense level is less than level 18, increase to level 18. If the defendant was a public official who facilitated (A) entry into the United States for a person, a vehicle, or cargo; (B) the obtaining of a passport or a document relating to naturalization, citizenship, legal entry, or legal resident status; or (C) the obtaining of a government identification document, increase by 2 levels.

(2)

(3)

(4)

(c)

Cross References (1) If the offense was committed for the purpose of facilitating the commission of another criminal offense, apply the offense guideline applicable to a conspiracy to commit that other offense, if the resulting offense level is greater than that determined above.

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§2C1.1

(2)

If the offense was committed for the purpose of concealing, or obstructing justice in respect to, another criminal offense, apply §2X3.1 (Accessory After the Fact) or §2J1.2 (Obstruction of Justice), as appropriate, in respect to that other offense, if the resulting offense level is greater than that determined above. If the offense involved a threat of physical injury or property destruction, apply §2B3.2 (Extortion by Force or Threat of Injury or Serious Damage), if the resulting offense level is greater than that determined above.

(3)

(d)

Special Instruction for Fines - Organizations (1) In lieu of the pecuniary loss under subsection (a)(3) of §8C2.4 (Base Fine), use the greatest of: (A) the value of the unlawful payment; (B) the value of the benefit received or to be received in return for the unlawful payment; or (C) the consequential damages resulting from the unlawful payment. Commentary

Statutory Provisions: 15 U.S.C. §§ 78dd-1, 78dd-2, 78dd-3; 18 U.S.C. §§ 201(b)(1), (2), 226, 227, 371 (if conspiracy to defraud by interference with governmental functions), 872, 1341 (if the scheme or artifice to defraud was to deprive another of the intangible right of honest services of a public official), 1342 (if the scheme or artifice to defraud was to deprive another of the intangible right of honest services of a public official), 1343 (if the scheme or artifice to defraud was to deprive another of the intangible right of honest services of a public official), 1951. For additional statutory provision(s), see Appendix A (Statutory Index). Application Notes: 1. Definitions.—For purposes of this guideline: "Government identification document" means a document made or issued by or under the authority of the United States Government, a State, or a political subdivision of a State, which, when completed with information concerning a particular individual, is of a type intended or commonly accepted for the purpose of identification of individuals. "Payment" means anything of value. A payment need not be monetary. "Public official" shall be construed broadly and includes the following: (A) (B) "Public official" as defined in 18 U.S.C. § 201(a)(1). A member of a state or local legislature. "State" means a State of the United States, and any commonwealth, territory, or possession of the United States. An officer or employee or person acting for or on behalf of a state or local government, or any department, agency, or branch of government thereof, in any
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(C)

§2C1.1

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official function, under or by authority of such department, agency, or branch of government, or a juror in a state or local trial. (D) Any person who has been selected to be a person described in subdivisions (A), (B), or (C), either before or after such person has qualified. An individual who, although not otherwise covered by subdivisions (A) through (D): (i) is in a position of public trust with official responsibility for carrying out a government program or policy; (ii) acts under color of law or official right; or (iii) participates so substantially in government operations as to possess de facto authority to make governmental decisions (e.g., which may include a leader of a state or local political party who acts in the manner described in this subdivision).

(E)

2.

More than One Bribe or Extortion.—Subsection (b)(1) provides an adjustment for offenses involving more than one incident of either bribery or extortion. Related payments that, in essence, constitute a single incident of bribery or extortion (e.g., a number of installment payments for a single action) are to be treated as a single bribe or extortion, even if charged in separate counts. In a case involving more than one incident of bribery or extortion, the applicable amounts under subsection (b)(2) (i.e., the greatest of the value of the payment, the benefit received or to be received, the value of anything obtained or to be obtained by a public official or others acting with a public official, or the loss to the government) are determined separately for each incident and then added together.

3.

Application of Subsection (b)(2).—"Loss", for purposes of subsection (b)(2)(A), shall be determined in accordance with Application Note 3 of the Commentary to §2B1.1 (Theft, Property Destruction, and Fraud). The value of "the benefit received or to be received" means the net value of such benefit. Examples: (A) A government employee, in return for a $500 bribe, reduces the price of a piece of surplus property offered for sale by the government from $10,000 to $2,000; the value of the benefit received is $8,000. (B) A $150,000 contract on which $20,000 profit was made was awarded in return for a bribe; the value of the benefit received is $20,000. Do not deduct the value of the bribe itself in computing the value of the benefit received or to be received. In the preceding examples, therefore, the value of the benefit received would be the same regardless of the value of the bribe. Application of Subsection (b)(3).— (A) Definition.—"High-level decision-making or sensitive position" means a position characterized by a direct authority to make decisions for, or on behalf of, a government department, agency, or other government entity, or by a substantial influence over the decision-making process. Examples.—Examples of a public official in a high-level decision-making position include a prosecuting attorney, a judge, an agency administrator, and any other public official with a similar level of authority. Examples of a public official who holds a sensitive position include a juror, a law enforcement officer, an election official, and any other similarly situated individual.
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4.

(B)

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§2C1.1

5.

Application of Subsection (c).—For the purposes of determining whether to apply the cross references in this section, the "resulting offense level" means the 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). See §1B1.5(d); Application Note 2 of the Commentary to §1B1.5 (Interpretation of References to Other Offense Guidelines). Inapplicability of §3B1.3.—Do not apply §3B1.3 (Abuse of Position of Trust or Use of Special Skill). Upward Departure Provisions.—In some cases the monetary value of the unlawful payment may not be known or may not adequately reflect the seriousness of the offense. For example, a small payment may be made in exchange for the falsification of inspection records for a shipment of defective parachutes or the destruction of evidence in a major narcotics case. In part, this issue is addressed by the enhancements in §2C1.1(b)(2) and (c)(1), (2), and (3). However, in cases in which the seriousness of the offense is still not adequately reflected, an upward departure is warranted. See Chapter Five, Part K (Departures). In a case in which the court finds that the defendant’s conduct was part of a systematic or pervasive corruption of a governmental function, process, or office that may cause loss of public confidence in government, an upward departure may be warranted. See §5K2.7 (Disruption of Governmental Function).

6.

7.

Background: This section applies to a person who offers or gives a bribe for a corrupt purpose, such as inducing a public official to participate in a fraud or to influence such individual’s official actions, or to a public official who solicits or accepts such a bribe. The object and nature of a bribe may vary widely from case to case. In some cases, the object may be commercial advantage (e.g., preferential treatment in the award of a government contract). In others, the object may be issuance of a license to which the recipient is not entitled. In still others, the object may be the obstruction of justice. Consequently, a guideline for the offense must be designed to cover diverse situations. In determining the net value of the benefit received or to be received, the value of the bribe is not deducted from the gross value of such benefit; the harm is the same regardless of value of the bribe paid to receive the benefit. In a case in which the value of the bribe exceeds the value of the benefit, or in which the value of the benefit cannot be determined, the value of the bribe is used because it is likely that the payer of such a bribe expected something in return that would be worth more than the value of the bribe. Moreover, for deterrence purposes, the punishment should be commensurate with the gain to the payer or the recipient of the bribe, whichever is greater. Under §2C1.1(b)(3), if the payment was for the purpose of influencing an official act by certain officials, the offense level is increased by 4 levels. Under §2C1.1(c)(1), if the payment was to facilitate the commission of another criminal offense, the guideline applicable to a conspiracy to commit that other offense will apply if the result is greater than that determined above. For example, if a bribe was given to a law enforcement officer to allow the smuggling of a quantity of cocaine, the guideline for conspiracy to import cocaine would be applied if it resulted in a greater offense level.

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§2C1.1

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November 1, 2009

Under §2C1.1(c)(2), if the payment was to conceal another criminal offense or obstruct justice in respect to another criminal offense, the guideline from §2X3.1 (Accessory After the Fact) or §2J1.2 (Obstruction of Justice), as appropriate, will apply if the result is greater than that determined above. For example, if a bribe was given for the purpose of concealing the offense of espionage, the guideline for accessory after the fact to espionage would be applied. Under §2C1.1(c)(3), if the offense involved forcible extortion, the guideline from §2B3.2 (Extortion by Force or Threat of Injury or Serious Damage) will apply if the result is greater than that determined above. Section 2C1.1 also applies to offenses under 15 U.S.C. §§ 78dd-1, 78dd-2, and 78dd-3. Such offenses generally involve a payment to a foreign public official, candidate for public office, or agent or intermediary, with the intent to influence an official act or decision of a foreign government or political party. Typically, a case prosecuted under these provisions will involve an intent to influence governmental action. Section 2C1.1 also applies to fraud involving the deprivation of the intangible right to honest services of government officials under 18 U.S.C. §§ 1341-1343 and conspiracy to defraud by interference with governmental functions under 18 U.S.C. § 371. Such fraud offenses typically involve an improper use of government influence that harms the operation of government in a manner similar to bribery offenses. Offenses involving attempted bribery are frequently not completed because the offense is reported to authorities or an individual involved in the offense is acting in an undercover capacity. Failure to complete the offense does not lessen the defendant’s culpability in attempting to use public position for personal gain. Therefore, solicitations and attempts are treated as equivalent to the underlying offense.
Historical Note: Effective November 1, 1987. Amended effective January 15, 1988 (see Appendix C, amendment 18); November 1, 1989 (see Appendix C, amendments 120-122); November 1, 1991 (see Appendix C, amendments 367 and 422); November 1, 1997 (see Appendix C, amendment 547); November 1, 2001 (see Appendix C, amendment 617); November 1, 2002 (see Appendix C, amendment 639); November 1, 2003 (see Appendix C, amendment 653); November 1, 2004 (see Appendix C, amendment 666); November 1, 2007 (see Appendix C, amendment 699); November 1, 2008 (see Appendix C, amendment 720).

§2C1.2.

Offering, Giving, Soliciting, or Receiving a Gratuity (a) Base Offense Level: (1) (2) (b) 11, if the defendant was a public official; or 9, otherwise.

Specific Offense Characteristics (1) (2) If the offense involved more than one gratuity, increase by 2 levels. If the value of the gratuity exceeded $5,000, increase by the number of levels from the table in §2B1.1 (Theft, Property Destruction, and Fraud) corresponding to that amount.
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§2C1.2

(3)

If the offense involved an elected public official or any public official in a high-level decision-making or sensitive position, increase by 4 levels. If the resulting offense level is less than level 15, increase to level 15. If the defendant was a public official who facilitated (A) entry into the United States for a person, a vehicle, or cargo; (B) the obtaining of a passport or a document relating to naturalization, citizenship, legal entry, or legal resident status; or (C) the obtaining of a government identification document, increase by 2 levels.

(4)

(c)

Special Instruction for Fines - Organizations (1) In lieu of the pecuniary loss under subsection (a)(3) of §8C2.4 (Base Fine), use the value of the unlawful payment.

Commentary Statutory Provisions: 18 U.S.C. §§ 201(c)(1), 212-214, 217. For additional statutory provision(s), see Appendix A (Statutory Index). Application Notes: 1. Definitions.—For purposes of this guideline: "Government identification document" means a document made or issued by or under the authority of the United States Government, a State, or a political subdivision of a State, which, when completed with information concerning a particular individual, is of a type intended or commonly accepted for the purpose of identification of individuals. "Public official" shall be construed broadly and includes the following: (A) (B) "Public official" as defined in 18 U.S.C. § 201(a)(1). A member of a state or local legislature. "State" means a State of the United States, and any commonwealth, territory, or possession of the United States. An officer or employee or person acting for or on behalf of a state or local government, or any department, agency, or branch of government thereof, in any official function, under or by authority of such department, agency, or branch of government, or a juror. Any person who has been selected to be a person described in subdivisions (A), (B), or (C), either before or after such person has qualified. An individual who, although not otherwise covered by subdivisions (A) through (D): (i) is in a position of public trust with official responsibility for carrying out a government program or policy; (ii) acts under color of law or official right; or (iii) participates so substantially in government operations as to
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(C)

(D)

(E)

§2C1.2

GUIDELINES M ANUAL

November 1, 2009

possess de facto authority to make governmental decisions (e.g., which may include a leader of a state or local political party who acts in the manner described in this subdivision). 2. Application of Subsection (b)(1).—Related payments that, in essence, constitute a single gratuity (e.g., separate payments for airfare and hotel for a single vacation trip) are to be treated as a single gratuity, even if charged in separate counts. Application of Subsection (b)(3).— (A) Definition.—"High-level decision-making or sensitive position" means a position characterized by a direct authority to make decisions for, or on behalf of, a government department, agency, or other government entity, or by a substantial influence over the decision-making process. Examples.—Examples of a public official in a high-level decision-making position include a prosecuting attorney, a judge, an agency administrator, a law enforcement officer, and any other public official with a similar level of authority. Examples of a public official who holds a sensitive position include a juror, a law enforcement officer, an election official, and any other similarly situated individual.

3.

(B)

4.

Inapplicability of §3B1.3.—Do not apply the adjustment in §3B1.3 (Abuse of Position or Trust or Use of Special Skill).

Background: This section applies to the offering, giving, soliciting, or receiving of a gratuity to a public official in respect to an official act. It also applies in cases involving (1) the offer to, or acceptance by, a bank examiner of a loan or gratuity; (2) the offer or receipt of anything of value for procuring a loan or discount of commercial bank paper from a Federal Reserve Bank; and (3) the acceptance of a fee or other consideration by a federal employee for adjusting or cancelling a farm debt.
Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendment 121); November 1, 1991 (see Appendix C, amendment 422); November 1, 1995 (see Appendix C, amendment 534); November 1, 2001 (see Appendix C, amendment 617); November 1, 2004 (see Appendix C, amendment 666).

§2C1.3.

Conflict of Interest; Payment or Receipt of Unauthorized Compensation (a) (b) Base Offense Level: 6 Specific Offense Characteristic (1) If the offense involved actual or planned harm to the government, increase by 4 levels.

(c)

Cross Reference (1) If the offense involved a bribe or gratuity, apply §2C1.1 (Offering, Giving, Soliciting, or Receiving a Bribe; Extortion Under Color of

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§2C1.5

Official Right; Fraud Involving the Deprivation of the Intangible Right to Honest Services of Public Officials; Conspiracy to Defraud by Interference with Governmental Functions) or §2C1.2 (Offering, Giving, Soliciting, or Receiving a Gratuity), as appropriate, if the resulting offense level is greater than the offense level determined above.

Commentary Statutory Provisions: 18 U.S.C. §§ 203, 205, 207, 208, 209, 1909; 40 U.S.C. § 14309(a), (b). For additional statutory provision(s), see Appendix A (Statutory Index). Application Note: 1. Abuse of Position of Trust.—Do not apply the adjustment in §3B1.3 (Abuse of Position of Trust or Use of Special Skill).

Historical Note: Effective November 1, 1987. Amended effective November 1, 1995 (see Appendix C, amendment 534); November 1, 2001 (see Appendix C, amendment 619); November 1, 2003 (see Appendix C, amendment 661); November 1, 2005 (see Appendix C, amendment 679).

§2C1.4. [Deleted]
Historical Note: Section 2C1.4 (Payment or Receipt of Unauthorized Compensation), effective November 1, 1987, amended effective November 1, 1998 (see Appendix C, amendment 588), was deleted by consolidation with §2C1.3 effective November 1, 2001 (see Appendix C, amendment 619).

§2C1.5.

Payments to Obtain Public Office (a) Base Offense Level: 8

Commentary Statutory Provisions: 18 U.S.C. §§ 210, 211. Application Note: 1. Do not apply the adjustment in §3B1.3 (Abuse of Position of Trust or Use of Special Skill).

Background: Under 18 U.S.C. § 210, it is unlawful to pay, offer, or promise anything of value to a person, firm, or corporation in consideration of procuring appointive office. Under 18 U.S.C. § 211, it is unlawful to solicit or accept anything of value in consideration of a promise of the use of influence in obtaining appointive federal office. Both offenses are misdemeanors for which the maximum term of imprisonment authorized by statute is one year.
Historical Note: Effective November 1, 1987.

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2001 (see Appendix C. 2001 (see Appendix C. amendment 617). November 1. or (B) the defendant committed the offense for the purpose of obtaining a specific. apply §2C1.8. 1992 (see Appendix C. identifiable non-monetary Federal benefit.1 effective November 1. amendment 468).7. solicitation. 2004 (see Appendix C. or expenditure made or obtained through intimidation. an illegal transaction made by or received from— (A) (B) (3) a foreign national. and Fraud) corresponding to that amount. amendment 617). Soliciting. 2003 (see Appendix C. (Apply the greater) If the offense involved.1 (Offering. [Deleted] Historical Note: Effective November 1. Making. increase by 4 levels. increase by 2 levels. amendment 368). 2009 Historical Note: Effective November 1. or Expenditure in Violation of the Federal Election Campaign Act. November 1. Fraudulently Misrepresenting Campaign Authority.§2C1. amendment 653). amendment 547). threat of pecuniary or other harm. or coercion. increase by 2 levels. [Deleted] GUIDELINES M ANUAL November 1. Soliciting or Receiving a Donation in Connection with an Election While on Certain Federal Property (a) (b) Base Offense Level: 8 Specific Offense Characteristics (1) If the value of the illegal transactions exceeded $5. was deleted by consolidation with §2C1. or a government of a foreign country. or receipt of governmental funds. Amended effective November 1. was deleted by consolidation with §2C1.1 (Theft.6. (2) If (A) the offense involved the contribution. donation. Amended effective November 1. Extortion Under Color of – 136 – . If the defendant engaged in 30 or more illegal transactions. solicitation. §2C1. (4) (5) (c) Cross Reference (1) If the offense involved a bribe or gratuity. 1991 (see Appendix C. If the offense involved a contribution. Donation. 2004 (see Appendix C. increase by the number of levels from the table in §2B1.000. amendment 666). increase by 4 levels. Property Destruction. donation. Giving. Receiving. increase by 2 levels. expenditure. or Failing to Report a Contribution.2 effective November 1. 1997 (see Appendix C. 1987. November 1. directly or indirectly. amendment 666). disbursement.6 §2C1. §2C1. or Receiving a Bribe.

prohibited by the Federal Election Campaign Act of 1971. 441f. or heightened access to. subsection (b)(3)(B) is intended to apply to defendants who commit the offense to obtain a specific. 441b.8 Official Right. – 137 – . see Statutory Index (Appendix A). of a State government.S. § 431 et seq.S. 2 U.S. or any other conduct. 441a. or other component of any such government. and (C) in the case of a violation of 18 U. as appropriate. public officials. Application Notes: 1. Application of Subsection (b)(3)(B).C. or property. 441k. if the resulting offense level is greater than the offense level determined above. § 607. Commentary Statutory Provisions: 2 U. donation. 2 U. Conspiracy to Defraud by Interference with Governmental Functions) or §2C1. 441a-1. 441d. donation. donation. or expenditure of money or anything of value made in excess of the amount of such contribution.C. or of a local government.C.S. § 611(e)). including any branch. "State" means any of the fifty States. solicitation. The terms "contribution" and "expenditure" have the meaning given those terms in section 301(8) and (9) of the Federal Election Campaign Act of 1971 (2 U.C. the Commonwealth of Puerto Rico. assets. Rather.S. the District of Columbia. solicitation. 441e.—For purposes of this guideline: "Foreign national" has the meaning given that term in section 319(b) of the Federal Election Campaign Act of 1971. agency.S. 441i.C.November 1. Guam. or expenditure that may be made under such Act. respectively. solicitation. "Local government" means the government of a political subdivision of a State. "Illegal transaction" means (A) any contribution. identifiable nonmonetary Federal benefit that does not rise to the level of a bribe or a gratuity. Subsection (b)(3)(B) is not intended to apply to offenses under this guideline in which the defendant’s only motivation for commission of the offense is generally to achieve increased visibility with. (B) any contribution. § 607. such as a Presidential pardon or information proprietary to the government. Definitions.C. §§ 437g(d)(1). the Northern Mariana Islands. 439a. 18 U. or Receiving a Gratuity). For additional provision(s). 441h(a). Soliciting. Giving. or American Samoa. "Governmental funds" means money. § 431(8) and (9)). of the United States government. department.—Subsection (b)(3)(B) provides an enhancement for a defendant who commits the offense for the purpose of achieving a specific. 441c.2 (Offering. identifiable non-monetary Federal benefit. "Government of a foreign country" has the meaning given that term in section 1(e) of the Foreign Agents Registration Act of 1938 (22 U. the United States Virgin Islands. 441g. § 441e(b). Fraud Involving the Deprivation of the Intangible Right to Honest Services of Public Officials. subdivision.C. or expenditure of money or anything of value. any solicitation or receipt of money or anything of value under that section. 2009 GUIDELINES MANUAL §2C1. 2.S.

—In a case in which the defendant’s conduct was part of a systematic or pervasive corruption of a governmental function. 2003 (see Appendix C. 2005 (see Appendix C. 4. whether or not the illegal transactions resulted in a conviction for such conduct. 2009 Application of Subsection (b)(4). November 1. Historical Note: Effective January 25. GUIDELINES M ANUAL November 1.§2C1. amendment 656). amendment 648). Departure Provision. – 138 – . Amended effective November 1. an upward departure may be warranted.8 3.—Subsection (b)(4) shall apply if the defendant engaged in any combination of 30 or more illegal transactions during the course of the offense. 2003 (see Appendix C. or office that may cause loss of public confidence in government. amendment 679). process.

if the defendant is convicted under 21 U. TRAFFICKING. (b)(2).S. Amended effective November 1. EXPORTING.November 1. or (b)(3). or (b)(1)(C). and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance. § 841(b)(1)(E) or 21 U.S. (ii) level 34 or level 36.S.C. Unlawful Manufacturing.C. or 30. and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance and that the defendant committed the offense after one or more prior convictions for a similar offense.S.C. Exporting. and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance.2 (Mitigating Role). 2009 GUIDELINES MANUAL §2D1. Importing. IMPORTING. (b)(2). and (B) the base offense level under subsection (c) is (i) level 32. Attempt or Conspiracy (a) Base Offense Level (Apply the greatest): (1) 43. (b)(1)(B).C. § 960(b)(5).S.1. if the defendant is convicted under 21 U.C. decrease by 2 levels.C. § 841(b)(1)(E) or 21 U. If the defendant unlawfully imported or exported a controlled substance under circumstances in which (A) an aircraft other than a regularly – 139 – (2) . (2) (3) (4) (5) (b) Specific Offense Characteristics (1) If a dangerous weapon (including a firearm) was possessed. § 841(b)(1)(A). or 26. UNLAWFUL MANUFACTURING. 1. § 841(b)(1)(A). if the defendant is convicted under 21 U. or (b)(3).C.S.S. except that if (A) the defendant receives an adjustment under §3B1. OR POSSESSION.OFFENSES INVOLVING DRUGS AND NARCO-TERRORISM Historical Note: Effective November 1. § 960(b)(1).C. or 38.S. CONTINUING CRIMINAL ENTERPRISE §2D1. decrease by 4 levels. or 21 U. 2007 (see Appendix C. (b)(1)(B). or (b)(1)(C). decrease by 3 levels. § 960(b)(1). if the defendant is convicted under 21 U. or the offense level specified in the Drug Quantity Table set forth in subsection (c). § 960(b)(5). or (iii) level 38.1 PART D . and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance and that the defendant committed the offense after one or more prior convictions for a similar offense. or Trafficking (Including Possession with Intent to Commit These Offenses). amendment 711). or 21 U. increase by 2 levels. 1987.

or possessing with intent to distribute. If the resulting offense level is less than level 26.C. § 860a of distributing. If the resulting offense level is less than level 14. (3) If the object of the offense was the distribution of a controlled substance in a prison. increase by 2 levels. and (B) the defendant is not subject to an adjustment under §3B1. storage. If the defendant is convicted under 21 U. emission. § 2285 was used.2 (Mitigating Role). or detention facility.C. flight officer. navigator. increase by 2 levels. or release into the environment of a hazardous or toxic substance.S. distributed a controlled substance through mass-marketing by means of an interactive computer service. If the offense involved the distribution of an anabolic steroid and a masking agent. copilot. or any other operation officer aboard any craft or vessel carrying a controlled substance. If the defendant. increase to level 14. If the defendant distributed an anabolic steroid to an athlete. or (C) the defendant acted as a pilot. 2009 scheduled commercial air carrier was used to import or export the controlled substance. increase to level 26. If the defendant was convicted under 21 U. If the defendant was convicted under 21 U.S. If— (4) (5) (6) (7) (8) (9) (10) (B) (C) – 140 – . or (ii) the unlawful transportation. § 841(g)(1)(A). or disposal of a hazardous waste. or a person for whose conduct the defendant is accountable under §1B1. increase by 2 levels. increase by 2 levels. If (A) the offense involved the importation of amphetamine or methamphetamine or the manufacture of amphetamine or methamphetamine from listed chemicals that the defendant knew were imported unlawfully. increase by 2 levels.C. (B) a submersible vessel or semi-submersible vessel as described in 18 U. captain. increase by 2 levels.1 GUIDELINES M ANUAL November 1.S.S. increase by 2 levels.C. treatment. increase by 2 levels. § 865.3 (Relevant Conduct). (Apply the greatest): (A) If the offense involved (i) an unlawful discharge. increase by 2 levels. methamphetamine on premises where a minor is present or resides.§2D1. correctional facility. increase by 2 levels.

apply §2X1.S.S. (ii) increase by 3 levels.] (d) Cross References (1) If a victim was killed under circumstances that would constitute murder under 18 U. or attempted to commit. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States. (11) If the defendant meets the criteria set forth in subdivisions (1)-(5) of subsection (a) of §5C1. (D) If the offense (i) involved the manufacture of amphetamine or methamphetamine.S. § 860a of manufacturing. if the resulting offense level is greater than that determined under this guideline.C. If the resulting offense level is less than level 27. increase to level 30. If the resulting offense level is less than level 30. apply §2A1. or Conspiracy) in respect to the crime of violence that the defendant committed. and (B) the defendant committed. – 141 – .1 (i) the defendant was convicted under 21 U. methamphetamine on premises where a minor is present or resides. Solicitation. as appropriate. § 841(b)(7) (of distributing a controlled substance with intent to commit a crime of violence). increase by 6 levels. or (II) the environment. or attempted or intended to commit. or the offense involved the manufacture of amphetamine or methamphetamine and the offense created a substantial risk of harm to (I) human life other than a life described in subdivision (D). and (ii) created a substantial risk of harm to the life of a minor or an incompetent. (2) (e) Special Instruction (1) If (A) subsection (d)(2) does not apply.2 (Second Degree Murder).1 (First Degree Murder) or §2A1. If the defendant was convicted under 21 U. 2009 GUIDELINES MANUAL §2D1. decrease by 2 levels.1 (Attempt.1(b)(1) shall apply.November 1. a sexual offense against another individual by distributing. if the resulting offense level is greater than that determined above. [Subsection (c) (Drug Quantity Table) is set forth on the following pages.C. or possessing with intent to manufacture.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases). a controlled substance to that individual. with or without that individual’s knowledge.C. increase to level 27. an adjustment under §3A1.

or at least 1 KG but less than 3 KG of PCP (actual). At least 4 KG but less than 12 KG of Fentanyl.5 KG of Methamphetamine (actual). At least 10. or 1. M M M M M (2) M M M M M M M M M M At least 10 KG but less than 30 KG of Heroin.000 KG or more of Hashish. At least 10 KG but less than 30 KG of PCP.000.5 KG or more of "Ice".000 units of Ketamine. M 300 G or more of LSD.000 KG of Marihuana. At least 500 G but less than 1. M 1.000 units of Flunitrazepam.000 KG but less than 6. At least 5 KG but less than 15 KG of Amphetamine.875.000. Level 36 (3) M M M M Level 34 – 142 – . M 30.000 but less than 1.1 GUIDELINES MANUAL November 1.000 KG but less than 30. 150 KG or more of Cocaine.5 KG or more of Amphetamine (actual).5 KG of Amphetamine (actual). M 6. At least 10. At least 3 KG but less than 10 KG of Heroin.000. At least 2.000.000 but less than 30. At least 10. or 1.000 KG or more of Marihuana. At least 50 KG but less than 150 KG of Cocaine.5 KG or more of Cocaine Base. At least 625. or at least 500 G but less than 1. M 30.000 units or more of Ketamine. or at least 500 G but less than 1.5 KG of "Ice". or at least 300 G but less than 1 KG of PCP (actual). M 30 KG or more of PCP. M 3 KG or more of a Fentanyl Analogue. At least 1 KG but less than 3 KG of a Fentanyl Analogue. At least 5 KG but less than 15 KG of Methamphetamine.5 KG but less than 4. M 600 KG or more of Hashish Oil. M 15 KG or more of Methamphetamine.000 units of Schedule I or II Depressants.000 units or more of Schedule I or II Depressants. or 3 KG or more of PCP (actual). At least 15 KG but less than 50 KG of Cocaine.000.875.000 KG of Hashish. or 1.000. M 4.5 KG or more of Methamphetamine (actual).5 KG of Cocaine Base. At least 3 KG but less than 10 KG of PCP. At least 1.000 units or more of Flunitrazepam. M 15 KG or more of Amphetamine. M 30. or at least 500 G but less than 1. At least 100 G but less than 300 G of LSD. M 12 KG or more of Fentanyl.000 but less than 30. At least 200 KG but less than 600 KG of Hashish Oil. 2009 (c) DRUG QUANTITY TABLE Controlled Substances and Quantity* (1) M M Base Offense Level Level 38 30 KG or more of Heroin.5 KG of Cocaine Base.§2D1.

5 KG but less than 5 KG of Amphetamine.000 KG of Marihuana.November 1.000.000 but less than 3. At least 700 G but less than 1 KG of PCP. M At least 60 KG but less than 200 KG of Hashish Oil. or at least 70 G but less than 100 G of PCP (actual). At least 500 G but less than 1.000.000. At least 500 G but less than 1. M At least 1. or at least 50 G but less than 150 G of Amphetamine (actual).000. 2009 GUIDELINES MANUAL §2D1. or at least 50 G but less than 150 G of "Ice".5 KG but less than 5 KG of Methamphetamine. At least 1.2 KG of Fentanyl.000 KG but less than 10.5 KG but less than 5 KG of Cocaine. Level 32 (5) M M M M M Level 30 M M M M – 143 – .000 units of Schedule I or II Depressants. M At least 30 G but less than 100 G of LSD.1 At least 1. or at least 150 G but less than 500 G of "Ice". At least 150 G but less than 500 G of Cocaine Base. At least 700 G but less than 1 KG of Heroin. or at least 35 G but less than 50 G of Amphetamine (actual). At least 10 G but less than 30 G of LSD. At least 7 G but less than 10 G of LSD. or at least 150 G but less than 500 G of Methamphetamine (actual). or at least 50 G but less than 150 G of Methamphetamine (actual).000 but less than 10.5 KG of Methamphetamine. or at least 35 G but less than 50 G of "Ice".000 units of Schedule I or II Depressants.000 but less than 3. M At least 300 G but less than 1 KG of a Fentanyl Analogue.500 but less than 625. At least 350 G but less than 500 G of Amphetamine.000 KG but less than 3.000. At least 1. At least 1 KG but less than 3 KG of PCP. M At least 3. M (4) M M M M M M M M M M M M M M M At least 1 KG but less than 3 KG of Heroin.000 units of Ketamine.500 but less than 187. or at least 150 G but less than 500 G of Amphetamine (actual). At least 100 G but less than 300 G of a Fentanyl Analogue. At least 280 G but less than 400 G of Fentanyl. or at least 35 G but less than 50 G of Methamphetamine (actual).500 units of Flunitrazepam. At least 1.000 units of Flunitrazepam.000. At least 200 KG but less than 600 KG of Hashish. At least 20 KG but less than 60 KG of Hashish Oil.000. M At least 3. At least 62. At least 5 KG but less than 15 KG of Cocaine.5 KG of Amphetamine. At least 3.2 KG but less than 4 KG of Fentanyl. M At least 187. M At least 600 KG but less than 2. At least 50 G but less than 150 G of Cocaine Base.000. M At least 3. At least 70 G but less than 100 G of a Fentanyl Analogue. At least 400 G but less than 1.000 KG of Marihuana.000 units of Ketamine.000 but less than 10. At least 350 G but less than 500 G of Methamphetamine. or at least 100 G but less than 300 G of PCP (actual). M At least 1.000 KG of Hashish.

M At least 100 KG but less than 400 KG of Marihuana. At least 200 G but less than 350 G of Amphetamine. or at least 5 G but less than 20 G of "Ice".000 but less than 700. At least 400 G but less than 700 G of PCP.000 but less than 43. or at least 20 G but less than 35 G of "Ice". 700.000 or more units of Schedule III Hydrocodone.750 but less than 62. At least 43.000 but less than 400.000 units of Schedule III Hydrocodone. M M Level 26 – 144 – . At least 400 G but less than 700 G of Heroin.1 M M M M M M M GUIDELINES MANUAL November 1. At least 400.§2D1. At least 140 KG but less than 200 KG of Hashish. M At least 100. M At least 50 G but less than 200 G of Amphetamine. M At least 100 G but less than 400 G of PCP. At least 14 KG but less than 20 KG of Hashish Oil.000 but less than 700. 2009 At least 700 KG but less than 1.000 units of Ketamine. At least 200 G but less than 350 G of Methamphetamine.000 but less than 400. At least 400. or at least 10 G but less than 40 G of PCP (actual). M At least 50 G but less than 200 G of Methamphetamine. At least 400. At least 500 G but less than 2 KG of Cocaine.750 units of Flunitrazepam. or at least 20 G but less than 35 G of Amphetamine (actual).000 units of Ketamine. (6) M M M M M Level 28 M M M M M M M M M M M (7) At least 100 G but less than 400 G of Heroin. At least 8 KG but less than 14 KG of Hashish Oil.000 but less than 400. At least 700. or at least 5 G but less than 20 G of Methamphetamine (actual).000 but less than 1.000 units of Schedule I or II Depressants. M At least 2 KG but less than 8 KG of Hashish Oil.000 KG of Marihuana.000 units of Ketamine. M At least 6. At least 400 KG but less than 700 KG of Marihuana.000. At least 4 G but less than 7 G of LSD.000 units of Flunitrazepam. At least 35 G but less than 50 G of Cocaine Base.000 but less than 1. At least 40 G but less than 70 G of a Fentanyl Analogue. M At least 100. or at least 40 G but less than 70 G of PCP (actual). or at least 20 G but less than 35 G of Methamphetamine (actual).000 but less than 700.000 units of Schedule III Hydrocodone. M At least 20 G but less than 35 G of Cocaine Base. M At least 40 G but less than 160 G of Fentanyl.000 units of Schedule I or II Depressants. M At least 1 G but less than 4 G of LSD.5 KG of Cocaine. At least 2 KG but less than 3. or at least 5 G but less than 20 G of Amphetamine (actual). At least 160 G but less than 280 G of Fentanyl. At least 80 KG but less than 140 KG of Hashish.250 but less than 25. M At least 20 KG but less than 80 KG of Hashish. M At least 10 G but less than 40 G of a Fentanyl Analogue. At least 700. At least 25.000 units of Schedule I or II Depressants.500 units of Flunitrazepam. M At least 100.000.

At least 60 G but less than 80 G of PCP.000 units of Ketamine. At least 1.000 but less than 100. At least 30 G but less than 40 G of Methamphetamine. At least 60. At least 60 KG but less than 80 KG of Marihuana. At least 5. At least 40 G but less than 50 G of Methamphetamine.1 Level 24 (8) M M M M M M M M M M M M M M M M At least 80 G but less than 100 G of Heroin.000 units of Schedule III Hydrocodone. M At least 40 G but less than 60 G of PCP. At least 40 G but less than 50 G of Amphetamine. At least 60. At least 30 G but less than 40 G of Amphetamine.000 units of Flunitrazepam. At least 5 G but less than 20 G of Cocaine Base. or at least 4 G but less than 5 G of Methamphetamine (actual). At least 80 KG but less than 100 KG of Marihuana. At least 3. or at least 4 G but less than 5 G of Amphetamine (actual). At least 80 G but less than 100 G of PCP. At least 1. At least 600 MG but less than 800 MG of LSD. At least 12 KG but less than 16 KG of Hashish.000 but less than 80.2 KG but less than 1. or at least 8 G but less than 10 G of PCP (actual). or at least 2 G but less than 3 G of "Ice". M At least 3 G but less than 4 G of Cocaine Base.000 but less than 6. At least 6 G but less than 8 G of a Fentanyl Analogue. At least 32 G but less than 40 G of Fentanyl. or at least 4 G but less than 5 G of "Ice". At least 80. At least 16 KG but less than 20 KG of Hashish. At least 4 G but less than 5 G of Cocaine Base. At least 400 G but less than 500 G of Cocaine. or at least 2 G but less than 3 G of Methamphetamine (actual). or at least 6 G but less than 8 G of PCP (actual). or at least 3 G but less than 4 G of Methamphetamine (actual).000 units of Schedule I or II Depressants.000 but less than 80.000 units of Schedule III Hydrocodone.250 units of Flunitrazepam. At least 60. At least 80.000 but less than 80. (9) M M M M M Level 22 M M M M M M M M M M M (10) M At least 40 G but less than 60 G of Heroin. M At least 20 G but less than 30 G of Methamphetamine. Level 20 – 145 – . At least 300 G but less than 400 G of Cocaine. At least 60 G but less than 80 G of Heroin. or at least 3 G but less than 4 G of Amphetamine (actual). At least 8 G but less than 10 G of a Fentanyl Analogue. or at least 3 G but less than 4 G of "Ice".6 KG but less than 2 KG of Hashish Oil.000 but less than 100.750 but less than 5. At least 80. At least 800 MG but less than 1 G of LSD.November 1.000 but less than 100.000 units of Schedule I or II Depressants. or at least 4 G but less than 6 G of PCP (actual). M At least 200 G but less than 300 G of Cocaine. At least 24 G but less than 32 G of Fentanyl.000 units of Ketamine. 2009 GUIDELINES MANUAL §2D1.6 KG of Hashish Oil.

or at least 1 G but less than 2 G of "Ice". or at least 500 MG but less than 1 G of "Ice".000 but less than 40. M At least 200 MG but less than 400 MG of LSD. M At least 50 G but less than 100 G of Cocaine.000 but less than 60. (11) M At least 20 G but less than 40 G of Heroin. M At least 10 G but less than 20 G of Amphetamine.000 but less than 60. M At least 10 G but less than 20 G of PCP. M At least 2 G but less than 3 G of Cocaine Base.000 but less than 40. M At least 1. M At least 5 KG but less than 8 KG of Hashish. M At least 10 G but less than 20 G of Methamphetamine. (12) M At least 10 G but less than 20 G of Heroin. or at least 1 G but less than 2 G of PCP (actual). M At least 100 G but less than 200 G of Cocaine. or at least 1 G but less than 2 G of Methamphetamine (actual). or at least 2 G but less than 3 G of Amphetamine (actual).500 units of Flunitrazepam. M At least 2.000 units of Ketamine. or at least 1 G but less than 2 G of Amphetamine (actual). M At least 1 G but less than 2 G of Cocaine Base. M At least 40. M At least 20. M At least 800 G but less than 1.000 or more units of Schedule III substances (except Ketamine or Hydrocodone). M At least 100 MG but less than 200 MG of LSD. or at least 500 MG but less than 1 G of Methamphetamine (actual). M At least 4 G but less than 6 G of a Fentanyl Analogue.000 but less than 40. Level 18 Level 16 – 146 – . M At least 16 G but less than 24 G of Fentanyl. or at least 2 G but less than 4 G of PCP (actual). M At least 8 KG but less than 12 KG of Hashish. M At least 40 KG but less than 60 KG of Marihuana.000 units of Schedule III Hydrocodone.000 units of Schedule III substances (except Ketamine or Hydrocodone).000 units of Schedule I or II Depressants.§2D1.000 but less than 40. or at least 500 MG but less than 1 G of Amphetamine (actual). M At least 20 G but less than 40 G of PCP.000 units of Schedule I or II Depressants. M At least 40.1 M GUIDELINES MANUAL November 1. M At least 40. M At least 20. M At least 8 G but less than 16 G of Fentanyl.750 units of Flunitrazepam. 2009 At least 20 G but less than 30 G of Amphetamine. M At least 20 KG but less than 40 KG of Marihuana. M At least 5 G but less than 10 G of Amphetamine. M 40. M At least 400 MG but less than 600 MG of LSD. M At least 500 G but less than 800 G of Hashish Oil.000 units of Schedule III Hydrocodone.500 but less than 3.000 units of Ketamine. M At least 20.000 but less than 60.2 KG of Hashish Oil. M At least 5 G but less than 10 G of Methamphetamine.250 but less than 2. M At least 2 G but less than 4 G of a Fentanyl Analogue. M At least 20.

M Less than 500 MG of Cocaine Base. M At least 5 KG but less than 10 KG of Marihuana. M Less than 2.000 but less than 10. M At least 25 G but less than 50 G of Cocaine.000 units of Schedule I or II Depressants.000 units of Schedule III substances (except Ketamine or Hydrocodone). M At least 500 MG but less than 1 G of Cocaine Base. M At least 2.000 but less than 20.000 units of Ketamine. M Less than 25 G of Cocaine. At least 10.1 M M M M M M M M M M At least 4 G but less than 8 G of Fentanyl. or less than 250 MG of Amphetamine (actual). or at least 250 MG but less than 500 MG of Methamphetamine (actual). or at least 500 MG but less than 1 G of PCP (actual). At least 10. M Less than 2 G of Fentanyl. At least 10 KG but less than 20 KG of Marihuana. M At least 5.000 but less than 20. M Less than 2. 2009 GUIDELINES MANUAL §2D1. M Less than 500 MG of a Fentanyl Analogue. M Less than 50 MG of LSD. At least 1 G but less than 2 G of a Fentanyl Analogue. M At least 50 G but less than 100 G of Hashish Oil. M At least 5.5 G but less than 5 G of Amphetamine.5 G but less than 5 G of Methamphetamine.000 units of Schedule III Hydrocodone. M At least 5. or less than 250 MG of Methamphetamine (actual).000 but less than 10. M At least 5 G but less than 10 G of PCP.000 units of Schedule I or II Depressants. M At least 500 MG but less than 1 G of a Fentanyl Analogue.5 G of Amphetamine. M At least 312 but less than 625 units of Flunitrazepam. or less than 250 MG of "Ice". or at least 250 MG but less than 500 MG of Amphetamine (actual). Level 14 Level 12 – 147 – . M At least 100 G but less than 200 G of Hashish Oil.5 G of Methamphetamine. At least 10.250 units of Flunitrazepam. M Less than 5 G of PCP.000 but less than 20. At least 2 KG but less than 5 KG of Hashish.5 KG but less than 5 KG of Marihuana.000 units of Ketamine.000 units of Schedule III Hydrocodone.000 but less than 10.000 units of Schedule III substances (except Ketamine or Hydrocodone). or less than 500 MG of PCP (actual).000 but less than 20. or at least 250 MG but less than 500 MG of "Ice". M At least 500 G but less than 1 KG of Hashish. At least 200 G but less than 500 G of Hashish Oil. M At least 50 MG but less than 100 MG of LSD. M At least 5. (13) M At least 5 G but less than 10 G of Heroin. M At least 1 KG but less than 2 KG of Hashish.November 1. M At least 2. M At least 2. M At least 2 G but less than 4 G of Fentanyl. (14) M Less than 5 G of Heroin. At least 625 but less than 1.000 but less than 10. At least 10.

5 KG of Marihuana.000 units of Schedule I or II Depressants. (17) M Less than 250 G of Marihuana.000 but less than 40. M At least 1.000 units of Ketamine. M At least 1. M Less than 250 units of Schedule I or II Depressants. M Less than 250 units of Schedule III Hydrocodone.500 units of Ketamine.000 units of Schedule IV substances (except Flunitrazepam). M Less than 40.000 units of Ketamine. M At least 1.000 units of Schedule IV substances (except Flunitrazepam).000 units of Schedule IV substances (except Flunitrazepam).500 but less than 5.000 units of Schedule V substances. If a mixture or substance contains more than one controlled substance. M At least 250 but less than 1. At least 2. M At least 250 but less than 1.500 but less than 5. M At least 200 G but less than 500 G of Hashish. M At least 20 G but less than 50 G of Hashish Oil. M At least 62 but less than 156 units of Flunitrazepam.000 units of Schedule III substances (except Ketamine or Hydrocodone). M At least 5 G but less than 20 G of Hashish Oil. M At least 16. At least 2.000 but less than 2. M At least 250 but less than 1. – 148 – .500 units of Schedule III substances (except Ketamine or Hydrocodone).000 or more units of Schedule V substances.000 units of Schedule III substances (except Ketamine or Hydrocodone). M Less than 4.000 units of Schedule III Hydrocodone. the weight of a controlled substance set forth in the table refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance. 40.000 units of Schedule III Hydrocodone.500 units of Schedule III Hydrocodone.000 but less than 2. M At least 4. M Less than 50 G of Hashish.500 units of Schedule I or II Depressants.500 but less than 5. M At least 1. M Less than 62 units of Flunitrazepam. (15) M At least 1 KG but less than 2. M Less than 250 units of Ketamine.000 but less than 16. the weight of the entire mixture or substance is assigned to the controlled substance that results in the greater offense level.000 or more units of Schedule IV substances (except Flunitrazepam). 2009 At least 2. M 40. At least 2. M At least 50 G but less than 200 G of Hashish. At least 156 but less than 312 units of Flunitrazepam.§2D1. (16) M At least 250 G but less than 1 KG of Marihuana. M Less than 250 units of Schedule III substances (except Ketamine or Hydrocodone).000 units of Schedule I or II Depressants.1 M M M M M M GUIDELINES MANUAL November 1.000 but less than 2.000 but less than 2.500 but less than 5. *Notes to Drug Quantity Table: (A) Level 10 Level 8 Level 6 Unless otherwise specified. M Less than 5 G of Hashish Oil. M At least 250 but less than 1.

F. §§ 841(a). Schedule IV substances. and (iii) fragments of plant material (such as cystolith fibers). and usually appearing in a lumpy. or tablet. § 1308. dark colored oil.11(d)(25)). as equivalent to 100 G of marihuana. do not use the weight of the LSD/carrier medium.4 mg of LSD for the purposes of the Drug Quantity Table.F. treat each plant. Commentary (E) (F) (G) (H) (I) Statutory Provisions: 21 U. use the actual weight of the marihuana. usually prepared by processing cocaine hydrochloride and sodium bicarbonate. 860a. or cannabichromene. topical cream. however. or cannabichromene. means "crack.g. rocklike form.. 865. Schedule III substances.R.C.1 (B) The terms "PCP (actual)". § 46317(b). 960(a). (b)(1)-(3). § 1308. (b). – 149 – . for the purposes of this guideline. a sheet of blotter paper). patch. tablet. capsule. In the case of LSD on a carrier medium (e. means a mixture or substance containing d-methamphetamine hydrochloride of at least 80% purity.S. In the case of a mixture or substance containing PCP. itself. In the case of an offense involving marihuana plants. and "Methamphetamine (actual)" refer to the weight of the controlled substance. the court shall consider that each 25 mg of an anabolic steroid is one "unit"." for the purposes of this guideline. or methamphetamine." "Crack" is the street name for a form of cocaine base. If the substance (except gamma-hydroxybutyric acid) is in liquid form. Hashish. 2009 GUIDELINES MANUAL §2D1. one "unit" means one pill. (7). "Amphetamine (actual)". amphetamine (actual). a mixture weighing 10 grams containing PCP at 50% purity contains 5 grams of PCP (actual). itself. for the purposes of this guideline. The term "Oxycodone (actual)" refers to the weight of the controlled substance. Instead. Hashish oil. treat each dose of LSD on the carrier medium as equal to 0.. (ii) at least two of the following: cannabinol. amphetamine. or mixture. contained in the mixture or substance. or the offense level determined by the weight of the PCP (actual). one "unit" means 0. aerosol).R. see Appendix A (Statutory Index).November 1. capsule.5 ml. and (iii) is essentially free of plant material (e. but it can vary from a dry resin to a colorless liquid. and Schedule V substances.11(d)(25)). capsule." for the purposes of this guideline.C. means a preparation of the soluble cannabinoids derived from cannabis that includes (i) one or more of the tetrahydrocannabinols (as listed in 21 C. For additional statutory provision(s). contained in the pill. means a resinous substance of cannabis that includes (i) one or more of the tetrahydrocannabinols (as listed in 21 C. (ii) at least two of the following: cannabinol. cannabidiol. In the case of Schedule I or II Depressants (except gamma-hydroxybutyric acid). "Cocaine base. 49 U.g. cannabidiol. the court shall determine the base offense level using a reasonable estimate of the quantity of anabolic steroid involved in the offense. (g). Provided.. hashish oil is a viscous. (C) (D) "Ice. or liquid form (e. Typically. regardless of sex. or methamphetamine (actual).g. plant fragments).S. use the offense level determined by the entire weight of the mixture or substance. that if the actual weight of the marihuana is greater. whichever is greater. For an anabolic steroid that is not in a pill. In making a reasonable estimate. For example.

Mixture or substance does not include materials that must be separated from the controlled substance before the controlled substance can be used. Analogues and Controlled Substances Not Referenced in this Guideline. arrested at his residence. an approximation of the weight of the marihuana without such excess moisture content is to be used.C. determine the base offense level using the marihuana equivalency of the most closely related controlled substance referenced in this guideline. non-countable material in an unusually sophisticated manner in order to avoid detection. § 841. had an unloaded hunting rifle in the closet.11(c)(1).S. 2D1. and. is treated as simple possession. the enhancement would not be applied if the defendant. An upward departure nonetheless may be warranted when the mixture or substance counted in the Drug Quantity Table is combined with other. except extracts of coca leaves from which cocaine and ecgonine have been removed. The statute and guideline also apply to "counterfeit" substances.12(c)(1).1 Application Notes: 1.S. except as otherwise provided. 2D1.—Any reference to a particular controlled substance in these guidelines includes all salts.6. 2D1. the court shall. Distribution of "a small amount of marihuana for no remuneration". to the extent practicable. In the case of a controlled substance that is not specifically referenced in this guideline.8. Definitions of "firearm" and "dangerous weapon" are found in the Commentary to §1B1.§2D1.1 (Application Instructions). 2. For purposes of this guideline "analogue" has the meaning given the term "controlled substance analogue" in 21 U. If such material cannot readily be separated from the mixture or substance that appropriately is counted in the Drug Quantity Table. and waste water from an illicit laboratory used to manufacture a controlled substance.1 applies. 4. all salts of isomers. Examples of such materials include the fiberglass in a cocaine/fiberglass bonded suitcase. – 150 – . § 841(b)(4). except as expressly provided. The enhancement also applies to offenses that are referenced to §2D1. with a bale of rain-soaked marihuana or freshly harvested marihuana that had not been dried). in the case of marihuana having a moisture content that renders the marihuana unsuitable for consumption without drying (this might occur. 5. In determining the appropriate sentence.5(a)(1). to which §2D2. Similarly. see §§2D1. § 802(32).1. Any reference to cocaine includes ecgonine and coca leaves. The adjustment should be applied if the weapon was present.2(a)(1) and (2).S.C. and 2D2. The enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. 2D1. for example. isomers. 21 U. the court also may consider whether the same quantity of analogue produces a greater effect on the central nervous system than the controlled substance for which it is an analogue. the court may use any reasonable method to approximate the weight of the mixture or substance to be counted. beeswax in a cocaine/beeswax statue. any analogue of that controlled substance.C. consider the following: 3. 2D1. 2D1.S. For example. which are defined in 21 U. GUIDELINES MANUAL November 1.1(b)(1). unless it is clearly improbable that the weapon was connected with the offense. In determining the most closely related controlled substance.7(b)(1).C. § 802 to mean controlled substances that are falsely labeled so as to appear to have been legitimately manufactured or distributed. 2009 "Mixture or substance" as used in this guideline has the same meaning as in 21 U.

S. . boat captains. or position may be used to significantly facilitate the commission of a drug offense.1 (A) Whether the controlled substance not referenced in this guideline has a chemical structure that is substantially similar to a controlled substance referenced in this guideline. financiers. accountants. Additionally. an enhancement under §3B1. Whether the controlled substance not referenced in this guideline has a stimulant. except in the case of PCP. In addition. Certain professionals often occupy essential positions in drug trafficking schemes.3 (Abuse of Position of Trust or Use of Special Skill). Interaction with §3B1. 7. particularly in the case of heroin.3.November 1. Where there are multiple transactions or multiple drug types. § 3553(f) provides an exception to the applicability of mandatory minimum sentences in certain cases. Tables for making the necessary conversions are provided below.1 (Substantial Assistance to Authorities). Where a mandatory (statutory) minimum sentence applies. or hallucinogenic effect on the central nervous system that is substantially similar to the stimulant. or hallucinogenic effect on the central nervous system of a controlled substance referenced in this guideline. Use of Drug Equivalency Tables. this factor is particularly relevant where smaller quantities are involved. however. pilots. 2009 GUIDELINES MANUAL §2D1. § 994(n). this mandatory minimum sentence may be "waived" and a lower sentence imposed (including a downward departure).C. depressant. compounds.—The Commission has used the sentences provided in. profession.— (A) Controlled Substances Not Referenced in Drug Quantity Table. As large quantities are normally associated with high purities. trade. Note. Trafficking in controlled substances. These professionals include doctors.—A defendant who used special skills in the commission of the offense may be subject to an adjustment under §3B1.C.S. Whether a lesser or greater quantity of the controlled substance not referenced in this guideline is needed to produce a substantially similar effect on the central nervous system as a controlled substance referenced in this guideline. 9. 8. The purity of the controlled substance. by reason of a defendant’s "substantial assistance in the investigation or prosecution of another person who has committed an offense. and others whose special skill. depressant. that if an adjustment from subsection (b)(2)(C) applies. 18 U. or oxycodone for which the guideline itself provides for the consideration of purity (see the footnote to the Drug Quantity Table). the fact that a defendant is in possession of unusually pure narcotics may indicate a prominent role in the criminal enterprise and proximity to the source of the drugs. methamphetamine. the statute (21 U.3 ordinarily would apply in a case in which the defendant used his or her position as a coach to influence an athlete to use an anabolic steroid. (B) (C) 6. § – 151 – 10.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases). may be relevant in the sentencing process because it is probative of the defendant’s role or position in the chain of distribution. bankers. and equivalences derived from.C. See §5C1. or mixtures of unusually high purity may warrant an upward departure. Since controlled substances are often diluted and combined with other substances as they pass down the chain of distribution. amphetamine.S." See §5K1. the quantities of drugs are to be added. chemists. as provided in 28 U.3 (Abuse of Position of Trust or Use of Special Skill). attorneys. do not apply §3B1.

In a case involving 100 gm of oxymorphone. In each case. The total is therefore equivalent to 95 kilograms of marihuana. the ratios in the Drug Equivalency Tables do not necessarily reflect dosages based on pharmacological equivalents. In the case of a controlled substance that is not specifically referenced in the Drug Quantity Table. converts to an equivalent quantity of 5 kg of marihuana.. see subdivision (D) of this note.. fentanyl. Where there are controlled substances from more than one schedule (e. (C) Examples for Combining Differing Controlled Substances (Except Cocaine Base). in the Drug Equivalency Tables set forth in this Note.— (i) The defendant is convicted of selling 70 grams of a substance containing PCP (Level 22) and 250 milligrams of a substance containing LSD (Level 18). The PCP converts to 70 kilograms of marihuana. 2009 841(b)(1)). provides direction only for the more common controlled substances.g. For certain types of controlled substances. methamphetamine. heroin. 1 gm of a substance containing oxymorphone. which corresponds to a base offense level of 28 in the Drug Quantity Table. – 152 – . determine the base offense level as follows: (i) (ii) (iii) Use the Drug Equivalency Tables to convert the quantity of the controlled substance involved in the offense to its equivalent quantity of marihuana. applicable to that schedule). cocaine.—The Drug Equivalency Tables also provide a means for combining differing controlled substances to obtain a single offense level. To determine a single offense level in a case involving cocaine base and other controlled substances. the marihuana equivalencies in the Drug Equivalency Tables are "capped" at specified amounts (e.§2D1. the LSD converts to 25 kilograms of marihuana. for which the Drug Quantity Table provides an offense level of 24.1 GUIDELINES MANUAL November 1. determine the marihuana equivalency for each schedule separately (subject to the cap. Note: Because of the statutory equivalences. The statute. (See also Application Note 5. applicable to the combined amounts). as the primary basis for the guideline sentences. if any. the combined equivalent weight of all Schedule V controlled substances shall not exceed 999 grams of marihuana). PCP. Then add the marihuana equivalencies to determine the combined marihuana equivalency (subject to the cap. LSD and marihuana. Use the offense level that corresponds to the equivalent quantity of marihuana as the base offense level for the controlled substance involved in the offense.) For example. a Schedule I opiate. convert each of the drugs to its marihuana equivalent. however. a quantity of a Schedule IV substance and a quantity of a Schedule V substance). add the quantities.. the equivalent quantity of marihuana would be 500 kg. i.g. if any. (B) Combining Differing Controlled Substances (Except Cocaine Base).e. Find the equivalent quantity of marihuana in the Drug Quantity Table. and look up the total in the Drug Quantity Table to obtain the combined offense level.

the controlled substance(s) other than cocaine base). of cocaine base.—The 2-level reduction provided in subdivision (i) shall not apply in a case in which: (I) the offense involved 4.25 kilograms). The defendant is convicted of selling 80 grams of cocaine (Level 16) and five kilograms of marihuana (Level 14). determine the combined offense level as provided by subdivision (B) of this note.99 + . a Schedule IV drug. The total is therefore equivalent to 21 kilograms of marihuana. The cocaine is equivalent to 16 kilograms of marihuana. The diazepam. and reduce the combined offense level by 2 levels. The marihuana equivalency for the Schedule IV substance is subject to a cap of 4.99 kilograms of marihuana set forth as the maximum equivalent weight for Schedule III substances). has an offense level of 10 in the Drug Quantity Table. Exceptions to 2-level Reduction.e. is equivalent to 625 grams of marihuana. Without the cap.999) kilograms. if the offense involves cocaine base ("crack") and one or more other controlled substance.. and 200. The marihuana equivalency for the Schedule V substance is subject to the cap of 999 grams of marihuana set forth as the maximum equivalent weight for Schedule V substances (without the cap it would have been 1. 2009 GUIDELINES MANUAL §2D1.125 kilograms of marihuana.1 (ii) The defendant is convicted of selling 500 grams of marihuana (Level 8) and five kilograms of diazepam (Level 8). (ii) (II) – 153 – . The combined equivalent weight. or less than 250 mg.000 units of a Schedule V substance. and V substances.5 kg or more. The defendant is convicted of selling 56. which has an offense level of 18 in the Drug Quantity Table. The total. determined by adding together the above amounts. or the 2-level reduction results in a combined offense level that is less than the combined offense level that would apply under subdivision (B) of this note if the offense involved only the other controlled substance(s) (i. is subject to the cap of 59.25 kilograms). 1.000 units of a Schedule III substance.99 kilograms of marihuana set forth as the maximum combined equivalent weight for Schedule III.— (i) In General. 100. the combined equivalent weight would have been 61. The marihuana equivalency for the Schedule III substance is 56 kilograms of marihuana (below the cap of 59.99 kilograms of marihuana set forth as the maximum equivalent weight for Schedule IV substances (without the cap it would have been 6.000 units of a Schedule IV substance.99 (56 + 4.—Except as provided in subdivision (ii).November 1. (iii) (iv) (D) Determining Base Offense Level in Offenses Involving Cocaine Base and Other Controlled Substances. IV.

— Schedule I or II Opiates* 1 gm of Heroin = 1 gm of Alpha-Methylfentanyl = 1 gm of Dextromoramide = 1 gm of Dipipanone = 1 gm of 3-Methylfentanyl = 1 gm of 1-Methyl-4-phenyl-4-propionoxypiperidine/MPPP = 1 gm of 1-(2-Phenylethyl)-4-phenyl-4-acetyloxypiperidine/ PEPAP = 700 gm of marihuana 1 kg of marihuana 10 kg of marihuana 670 gm of marihuana 250 gm of marihuana 10 kg of marihuana 700 gm of marihuana – 154 – .100 kg of marihuana corresponds to a combined offense level of 34.5 kg of cocaine. (II) (E) Drug Equivalency Tables. their combined equivalent quantity of 310 kg of marihuana corresponds to a combined offense level of 26 under the Drug Quantity Table. Under the Drug Equivalency Tables in subdivision (E) of this note. Under the Drug Quantity Table. which. Because the combined offense level for all three drug types after the 2-level reduction is not less than the combined base offense level for the cocaine and marihuana.100 kg of marihuana. 710 kg of marihuana corresponds to a combined offense level of 30. For the cocaine and marihuana. For the heroin. the 6.5 kg x 200 gm = 300 kg). which is reduced by two levels to 32. the combined offense level for all three drug types remains level 28. when added together results in a combined equivalent quantity of 6. the reduction does not apply and the combined offense level for the two drugs remains level 34. and 10 kg of marihuana. 1.000 kg).5 kg of cocaine converts to 300 kg of marihuana (1.000 kg of marihuana (6. Under the Drug Equivalency Tables in subdivision (E) of this note. 6.§2D1.000 kg of marihuana corresponds to an offense level 34 under the Drug Quantity Table. 5 gm of cocaine base converts to 100 kg of marihuana (5 gm x 20 kg = 100 kg).— (I) GUIDELINES MANUAL November 1. when added to the 10 kg of marihuana results in a combined equivalent quantity of 710 kg of marihuana. 2009 The case involves 20 gm of cocaine base. The case involves 5 gm of cocaine base and 6 kg of heroin. 20 gm of cocaine base converts to 400 kg of marihuana (20 gm x 20 kg = 400 kg). Under the Drug Quantity Table. and 6 kg of heroin converts to 6. which. Because the combined offense level for the two drug types after the 2-level reduction is less than the offense level for the heroin. which is reduced by two levels to level 28.000 gm x 1 kg = 6. and 1.1 (iii) Examples.

2009 GUIDELINES MANUAL §2D1.November 1. Cocaine and Other Schedule I and II Stimulants (and their immediate precursors)* 1 gm of Cocaine = 1 gm of N-Ethylamphetamine = 1 gm of Fenethylline = 1 gm of Amphetamine = 1 gm of Amphetamine (Actual) = 1 gm of Methamphetamine = 1 gm of Methamphetamine (Actual) = 1 gm of "Ice" = 1 gm of Khat = 1 gm of 4-Methylaminorex ("Euphoria")= 1 gm of Methylphenidate (Ritalin)= 1 gm of Phenmetrazine = 1 gm Phenylacetone/P2 P (when possessed for the purpose of manufacturing methamphetamine) = 1 gm Phenylacetone/P2 P (in any other case) = 1 gm Cocaine Base (‘Crack’) = 1 gm of Aminorex = 416 gm of marihuana 75 gm of marihuana 20 kg of marihuana 100 gm of marihuana 200 gm of marihuana 80 gm of marihuana 40 gm of marihuana 2 kg of marihuana 20 kg of marihuana 2 kg of marihuana 20 kg of marihuana 20 kg of marihuana .5 kg of marihuana 50 gm of marihuana 500 gm of marihuana 1 kg of marihuana 500 gm of marihuana 6700 gm of marihuana 5 kg of marihuana 800 gm of marihuana 80 gm of marihuana 50 gm of marihuana 165 gm of marihuana 500 gm of marihuana 250 gm of marihuana 50 gm of marihuana 3 kg of marihuana *Provided. that the minimum offense level from the Drug Quantity Table for any of these controlled substances individually.1 100 gm of marihuana 1 gm of Alphaprodine = 1 gm of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4piperidinyl] Propanamide) = 1 gm of Hydromorphone/Dihydromorphinone = 1 gm of Levorphanol = 1 gm of Meperidine/Pethidine = 1 gm of Methadone = 1 gm of 6-Monoacetylmorphine = 1 gm of Morphine = 1 gm of Oxycodone (actual) = 1 gm of Oxymorphone = 1 gm of Racemorphan = 1 gm of Codeine = 1 gm of Dextropropoxyphene/Propoxyphene-Bulk = 1 gm of Ethylmorphine = 1 gm of Hydrocodone/Dihydrocodeinone = 1 gm of Mixed Alkaloids of Opium/Papaveretum = 1 gm of Opium = 1 gm of Levo-alpha-acetylmethadol (LAAM)= 2.01 gm of marihuana 100 gm of marihuana 100 gm of marihuana 80 gm of marihuana – 155 – .5 kg of marihuana 2.5 kg of marihuana 2. is level 12. or in combination with another controlled substance.

5 kg of marihuana 1. Synthetic = 1 gm of marihuana 50 gm of marihuana 5 gm of marihuana 167 gm of marihuana 167 gm of marihuana – 156 – . 2009 380 gm of marihuana 40 gm of marihuana 1 gm of N-N-Dimethylamphetamine = *Provided. or in combination with another controlled substance.5 gm of marihuana 0.05 gm of marihuana 1 kg of marihuana 10 kg of marihuana 500 gm of marihuana 500 gm of marihuana 1 kg of marihuana 1 kg of marihuana 2.4-Methylenedioxy-N-ethylamphetamine/MDEA= 1 gm of Paramethoxymethamphetamine/PMA = 1 gm of 1-Piperidinocyclohexanecarbonitrile/PCC = 1 gm of N-ethyl-1-phenylcyclohexylamine (PCE) = 0. granulated.1 gm of marihuana 0.5-Dimethoxy-4-methylamphetamine/DOM = 1 gm of 3. is level 12. Schedule I Marihuana 1 gm of Marihuana/Cannabis.1 1 gm of Methcathinone = GUIDELINES MANUAL November 1.5-Dimethoxyamphetamine/DOB = 1 gm of 2. Organic = 1 gm of Tetrahydrocannabinol. = 1 gm of Hashish Oil = 1 gm of Cannabis Resin or Hashish = 1 gm of Tetrahydrocannabinol. and Other Schedule I and II Hallucinogens (and their immediate precursors)* 1 gm of Bufotenine = 1 gm of D-Lysergic Acid Diethylamide/Lysergide/LSD = 1 gm of Diethyltryptamine/DET = 1 gm of Dimethyltryptamine/DMT = 1 gm of Mescaline = 1 gm of Mushrooms containing Psilocin and/or Psilocybin (Dry) = 1 gm of Mushrooms containing Psilocin and/or Psilocybin (Wet) = 1 gm of Peyote (Dry) = 1 gm of Peyote (Wet) = 1 gm of Phencyclidine/PCP = 1 gm of Phencyclidine (actual) /PCP (actual) = 1 gm of Psilocin = 1 gm of Psilocybin = 1 gm of Pyrrolidine Analog of Phencyclidine/PHP = 1 gm of Thiophene Analog of Phencyclidine/TCP = 1 gm of 4-Bromo-2. that the minimum offense level from the Drug Quantity Table for any of these controlled substances individually. powdered.§2D1. that the minimum offense level from the Drug Quantity Table for any of these controlled substances individually. or in combination with another controlled substance.4-Methylenedioxyamphetamine/MDA = 1 gm of 3.67 kg of marihuana 500 gm of marihuana 500 gm of marihuana 500 gm of marihuana 500 gm of marihuana 680 gm of marihuana 1 kg of marihuana 1 gm of marihuana 70 gm of marihuana 100 kg of marihuana 80 gm of marihuana 100 gm of marihuana 10 gm of marihuana *Provided. etc.4-Methylenedioxymethamphetamine/MDMA = 1 gm of 3. is level 12. LSD. PCP.

and Schedule V substances shall not exceed 999. Schedule IV substances (except flunitrazepam). that the combined equivalent weight of all Schedule III substances (except ketamine). that the combined equivalent weight of all Schedule IV (except flunitrazepam) and V substances shall not exceed 4.November 1.0625 gm of marihuana *****Provided. and Schedule V substances is level 8. Schedule III Hydrocodone**** 1 unit of Schedule III hydrocodone = 1 gm of marihuana ****Provided. Ketamine 1 unit of ketamine = 1 gm of marihuana Schedule IV Substances (except flunitrazepam)***** 1 unit of a Schedule IV Substance (except Flunitrazepam)= 0.1 Flunitrazepam ** 1 unit of Flunitrazepam = 16 gm of marihuana **Provided. Schedule I or II Depressants (except gamma-hydroxybutyric acid) 1 unit of a Schedule I or II Depressant (except gamma-hydroxybutyric acid) = 1 gm of marihuana Gamma-hydroxybutyric Acid 1 ml of gamma-hydroxybutyric acid = 8. that the minimum offense level from the Drug Quantity Table for flunitrazepam individually. and Schedule V substances shall not exceed 59. or in combination with any Schedule I or II depressants. – 157 – .99 kilograms of marihuana. Schedule IV substances (except flunitrazepam). Schedule III substances. 2009 GUIDELINES MANUAL §2D1.99 kilograms of marihuana. that the combined equivalent weight of all Schedule III substances (except ketamine and hydrocodone). Schedule IV substances.99 kilograms of marihuana.8 gm of marihuana Schedule III Substances (except ketamine and hydrocodone)*** 1 unit of a Schedule III Substance = 1 gm of marihuana ***Provided.

displays the typical weight per dose.6 gm 1 lb = 0.§2D1. or capsules but not the weight of the controlled substance is known. that in a case involving ephedrine. use the weight of the ephedrine.35 gm 1 lb = 453. or capsules by the typical weight per dose in the table below to estimate the total weight of the controlled substance (e.4-butanediol = 1 ml of gamma butyrolactone = 8.946 liters 1 gm = 1 ml (liquid) 1 liter = 1. or phenylpropanolamine contained in the tablets..8 gm marihuana 8.000 gm 1 gm = 1. GHB. Date Rape Drugs (except flunitrazipam. 100 doses of Mescaline at 500 mg per dose = 50 gms of mescaline). pseudoephedrine. pseudoephedrine. pills. in calculating the base offense level. the following table is provided: MEASUREMENT CONVERSION TABLE 1 oz = 28.785 liters 1 qt = 0. Do not use this table if any more reliable estimate of the total weight is available from case-specific information.000 ml 1 kg = 1. or capsule for certain controlled substances.4536 kg 1 gal = 3. not the weight of the entire tablets. List I Chemicals (relating to the manufacture of amphetamine or methamphetamine)******* 1 gm of Ephedrine = 1 gm of Phenylpropanolamine = 1 gm of Pseudoephedrine = 10 kg of marihuana 10 kg of marihuana 10 kg of marihuana *******Provided. pills. or ketamine) 1 ml of 1. – 158 – . The Typical Weight Per Unit Table. 2009 Schedule V Substances****** 1 unit of a Schedule V Substance = 0. or phenylpropanolamine tablets. multiply the number of doses. If the number of doses.1 GUIDELINES MANUAL November 1. 11.g. pill.000 mg 1 grain = 64. that the combined equivalent weight of Schedule V substances shall not exceed 999 grams of marihuana.8 gm marihuana To facilitate conversions to drug equivalencies. prepared from information provided by the Drug Enforcement Administration.00625 gm of marihuana ******Provided.8 mg.

the court shall approximate the quantity of the controlled substance. DOM)* 250 mg 250 mg 500 mg 5 mg 12 gm 120 gm 10 mg 5 gm 50 gm 10 mg 3 mg Marihuana 1 marihuana cigarette Stimulants Amphetamine* Methamphetamine* Phenmetrazine (Preludin)* 10 mg 5 mg 75 mg 0. See §1B1. In making this determination. and not generally the weight of the mixture or substance containing the controlled substance. the agreed-upon quantity of the controlled substance shall be used to determine the offense level unless the sale is completed and the amount delivered more accurately reflects the scale of the offense.1 TYPICAL WEIGHT PER UNIT (DOSE. 12. If the offense involved both a substantive drug offense and an attempt or conspiracy (e.g. the court may consider. For – 159 – . and the size or capability of any laboratory involved.5-Dimethoxy-4-methylamphetamine (STP. PILL. Where there is no drug seizure or the amount seized does not reflect the scale of the offense. the total quantity involved shall be aggregated to determine the scale of the offense.November 1. Therefore. the weight per unit shown is the weight of the actual controlled substance. OR CAPSULE) TABLE Hallucinogens MDA MDMA Mescaline PCP* Peyote (dry) Peyote (wet) Psilocin* Psilocybe mushrooms (dry) Psilocybe mushrooms (wet) Psilocybin* 2. the price generally obtained for the controlled substance.3(a)(2) (Relevant Conduct).5 gm *For controlled substances marked with an asterisk.. Types and quantities of drugs not specified in the count of conviction may be considered in determining the offense level. In an offense involving an agreement to sell a controlled substance. for example. financial or other records. 2009 GUIDELINES MANUAL §2D1. similar transactions in controlled substances by the defendant. use of this table provides a very conservative estimate of the total weight. sale of five grams of heroin and an attempt to sell an additional ten grams of heroin).

R. a Schedule II opiate. or root hairs is a marihuana plant). a downward departure may be warranted. If.§2D1. For example. the classification of the controlled substance under 21 C. an upward departure may be warranted where the quantity is at least ten times the minimum quantity required for level 38. and no further delivery is scheduled. an upward departure may be warranted if the drug quantity substantially exceeds the quantity for the highest offense level established for that particular controlled substance.R. Tylenol 3 is classified as a Schedule III controlled substance even though it contains a small amount of codeine. § 1308.13-15 is the appropriate classification. or was not reasonably capable of providing or purchasing.1 GUIDELINES MANUAL November 1.g.F. a marihuana cutting having roots.13-15 even though they contain a small amount of a Schedule I or II controlled substance. Similarly. 14. thereby leading to the defendant’s purchase of a significantly greater quantity of the controlled substance than his available resources would have allowed him to purchase except for the artificially low price set by the government agent. 2009 example. In contrast. LSD on a blotter paper carrier medium typically is marked so that the number of doses ("hits") per sheet readily can be determined. a rootball. For purposes of the guidelines. § 1308. 17. an upward departure above offense level 38 on the basis of drug quantity may be warranted. 15. If.F.actually 480 grams of cocaine. For example.. In the case of liquid LSD (LSD that has not been placed onto a carrier medium). not by the defendant. Certain pharmaceutical preparations are classified as Schedule III. it is to be presumed that each 1/4 inch by 1/4 inch section of the blotter paper is equal to one dose. a "plant" is an organism having leaves and a readily observable root formation (e. using the weight of the LSD alone to calculate the offense level may not adequately reflect the seriousness of the offense. the transaction is completed by the delivery of the controlled substance . 16. the defendant establishes that the defendant did not intend to provide or purchase. a defendant agrees to sell 500 grams of cocaine. or V controlled substances by the Drug Enforcement Administration under 21 C. IV. 13. the agreed-upon quantity of the controlled substance. In such a case. When this is not the case. the amount delivered more accurately reflects the scale of the offense. in a reverse sting (an operation in which a government agent sells or negotiates to sell a controlled substance to a defendant). in the case of a controlled substance for which the maximum offense level is less than level 38. however. in a reverse sting. – 160 – . the agreed-upon quantity of the controlled substance would more accurately reflect the scale of the offense because the amount actually delivered is controlled by the government. In an extraordinary case. the court finds that the government agent set a price for the controlled substance that was substantially below the market value of the controlled substance. In this example. For the purposes of the guidelines. an upward departure may be warranted. the court shall exclude from the offense level determination the amount of controlled substance that the defendant establishes that the defendant did not intend to provide or purchase or was not reasonably capable of providing or purchasing.

and the likelihood of release into the environment of hazardous or toxic substances. (ii) (iii) (iv) (B) Definitions. treatment. § 5124 (relating to violations of laws and regulations enforced by the Department of Transportation with respect to the transportation of hazardous material).. 33 U. whether the laboratory is located in a residential neighborhood or a remote area). the court shall include consideration of the following factors: (i) The quantity of any chemicals or hazardous or toxic substances found at the laboratory. The location of the laboratory (e. Additionally. for purposes of subsection (b)(10)(C)(ii) or (D).C. an upward departure may be warranted.S. The duration of the offense. Compensation. respectively.C. whether the offense created a substantial risk of harm to human life or the environment. § 853(q) (mandatory restitution for cleanup costs relating to the manufacture of amphetamine and methamphetamine).— (A) Factors to Consider.C. 2009 GUIDELINES MANUAL §2D1. emission. mental retardation. or disposal violation covered by the Resource Conservation and Recovery Act.g. transportation.1 (Restitution) and in fashioning appropriate conditions of probation and supervision under §§5B1. the enhancement under subsection (b)(10)(A) may not account adequately for the seriousness of the environmental harm or other threat to public health or safety (including the health or safety of law enforcement and cleanup personnel). 42 U. the Federal Water Pollution Control Act.—For purposes of subsection (b)(10)(D): "Incompetent" means an individual who is incapable of taking care of the individual’s self or property because of a mental or physical illness or disability. If the offense involved importation of amphetamine or methamphetamine. or 49 U.S. In some cases.3 (Conditions of Supervised Release). and Liability Act. do not apply subsection (b)(4). § 1319(c). and the number of human lives placed at substantial risk of harm. the Comprehensive Environmental Response. in determining the amount of restitution under §5E1. See 21 U. 19.—In determining.November 1. any costs of environmental cleanup and harm to individuals or property shall be considered by the court in cases involving the manufacture of amphetamine or methamphetamine and should be considered by the court in cases involving the manufacture of a controlled substance other than amphetamine or methamphetamine. and the extent of the manufacturing operation. storage. – 161 – .C.1 18. and the manner in which the chemicals or substances were stored.3 (Relevant Conduct) involved any discharge. 42 U. The manner in which hazardous or toxic substances were disposed.S.S. Substantial Risk of Harm Associated with the Manufacture of Amphetamine and Methamphetamine. Hazardous or Toxic Substances.C.—Subsection (b)(10)(A) applies if the conduct for which the defendant is accountable under §1B1. § 9603(b). and an adjustment from subsection (b)(2) applies.S. § 6928(d). In such cases.3 (Conditions of Probation) and 5D1. or senility. release. 20.

which provides a minimum offense level of level 17. require the imposition of a mandatory consecutive term of imprisonment of not more than 20 years and 15 years. of a large number of persons to induce those persons to purchase a controlled substance.C.C. § 860a or § 865.1 (Criminal Sexual Abuse). a sentence of 130 months for the underlying offense plus 21 months for the conduct covered by 21 U. Application of Subsection (e)(1). For example. For example. "masking agent" means a substance that.2(b).S. "mass-marketing by means of an interactive computer service" means the solicitation. Upward Departure Provision. respectively. 23.S.S.—If the defendant committed a sexual offense against more than one individual. an upward departure would be warranted. – 162 – .—For purposes of subsection (b)(6). "sexual offense" means a "sexual act" or "sexual contact" as those terms are defined in 18 U. Application of Subsection (b)(6). § 2246(2) and (3).C. subsection (b)(6) would apply to a defendant who operated a web site to promote the sale of Gamma-hydroxybutyric Acid (GHB) but would not apply to coconspirators who use an interactive computer service only to communicate with one another in furtherance of the offense.C. 22. by means of an interactive computer service. "Interactive computer service". Section §5C1. if the applicable adjusted guideline range is 151-188 months and the court determines a "total punishment" of 151 months is appropriate.§2D1. Application of Subsection (b)(8). "athlete" means an individual who participates in an athletic activity conducted by (i) an intercollegiate athletic 26. 2009 "Minor" has the meaning given that term in Application Note 1 of the Commentary to §2A3.—For purposes of subsection (b)(8).—Sections 860a and 865 of title 21. United States Code.—For purposes of this guideline.1 GUIDELINES MANUAL November 1.C. 24. Applicability of Subsection (b)(11). 21.C.—For purposes of subsection (b)(7).S. § 860a or § 865. the court should determine the appropriate "total punishment" and divide the sentence on the judgment form between the sentence attributable to the underlying drug offense and the sentence attributable to 21 U. (B) 25. has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U.S. when taken before. respectively.— (A) Definition.—The applicability of subsection (b)(11) shall be determined without regard to whether the defendant was convicted of an offense that subjects the defendant to a mandatory minimum term of imprisonment. Imposition of Consecutive Sentence for 21 U.S. after. § 860a or § 865 would achieve the "total punishment" in a manner that satisfies the statutory requirement of a consecutive sentence. In order to comply with the relevant statute. Application of Subsection (b)(7). or in conjunction with an anabolic steroid. for purposes of subsection (b)(6) and this note. is not pertinent to the determination of whether subsection (b)(11) applies. § 860a or § 865. prevents the detection of the anabolic steroid in an individual’s body. § 230(f)(2)). specifying the number of months to be served consecutively for the conviction under 21 U.

Guidelines for the imposition. the Commission adopted the policy that each plant is to be treated as the equivalent of an attempt to produce 100 grams of marihuana. an attempt is assigned the same offense level as the object of the attempt. more dangerous controlled substances. In controlled substance offenses. e. §§ 841 and 960 receive identical punishment based upon the quantity of the controlled substance involved. Because the weights of LSD carrier media vary widely and typically far exceed the weight of the controlled substance itself. the Commission has adopted an equivalency of 100 grams per plant. probation officers.05 milligram (i. The base offense levels at levels 26 and 32 establish guideline ranges with a lower limit as close to the statutory minimum as possible. and members of the Organized Crime Drug Enforcement Task Forces. For marihuana plants. attorneys. or the actual weight of the usable marihuana.November 1. (ii) a professional athletic association. Consequently. or (iii) an amateur athletic organization.. in cases involving LSD contained in a carrier medium.g. duration. however. the Commission consulted numerous experts and practitioners. including authorities at the Drug Enforcement Administration. The decision to treat each plant as equal to 100 grams is premised on the fact that the average yield from a mature marihuana plant equals 100 grams of marihuana..C. Part D (Supervised Release). who also advocate the necessity of these distinctions. 2009 GUIDELINES MANUAL §2D1.1 association or interscholastic athletic association.S.4 milligram for purposes of determining the base offense level. The dosage weight of LSD selected exceeds the Drug Enforcement Administration’s standard dosage unit for LSD of 0. Specific Offense Characteristic (b)(2) is derived from Section 6453 of the Anti-Drug Abuse Act of 1988. this scheme has been modified in response to specific congressional directives to the Commission. Where necessary. Background: Offenses under 21 U. and apply to all unlawful trafficking. The base offense levels in §2D1. further refinement of drug amounts is essential to provide a logical sentencing structure for drug offenses. the defendant’s criminal history.e. where the statutory minimum is ten years or 120 months. the quantity of actual LSD per dose) in order to assign some weight to the carrier medium. except where the actual weight of the usable marihuana is greater. the Commission has determined that basing offense levels on the entire weight of the LSD and carrier medium would produce unwarranted disparity among offenses involving the same quantity of actual LSD (but different carrier weights). and whether death or serious bodily injury resulted from the offense. such as PCP. Consequently. whichever is greater. Because LSD typically is marketed and consumed orally on a – 163 – . chemists. Frequently. level 32 ranges from 121 to 151 months. as well as sentences disproportionate to those for other. a term of supervised release to follow imprisonment is required by statute for offenses covered by this guideline. the Commission has established a weight per dose of 0.1 are either provided directly by the Anti-Drug Abuse Act of 1986 or are proportional to the levels established by statute. To determine these finer distinctions. and conditions of supervised release are set forth in Chapter Five. Levels 32 and 26 in the Drug Quantity Table are the distinctions provided by the Anti-Drug Abuse Act.

March 27.S. the weight per dose selected is less than the weight per dose that would equate the offense level for LSD on a carrier medium with that for the same number of doses of PCP.§2D1. November 1. amendments 514-518). United States. 1991 (see Appendix C. 2009 carrier medium. amendments 123-134. amendments 705. 2000 (see Appendix C. Subsections (b)(10)(C)(ii) and (D) implement. November 1. November 1. November 1. November 1. amendment 681). 484-488.5 milligram per dose would produce offense levels equivalent to those for PCP. Historical Note: Effective November 1. At the same time. 706.Ct. Amended effective January 15. amendments 620-625). 1989 (see Appendix C. or 13. and 674). 668. 1994 (see Appendix C. a controlled substance that comparative assessments indicate is more likely to induce violent acts and ancillary crime than is LSD. amendment 715).) Thus. amendment 640). the instruction to the Commission in section 102 of Public Law 106–310. Subsection (b)(10)(A) implements the instruction to the Commission in section 303 of Public Law 103–237. 1995 (see Appendix C. and 711). 2001 (see Appendix C.1 applicable to the total quantity of controlled substances involved in the offense. amendment 679). 20. and (B) the decision in Chapman v. or 26. 2008 (see Appendix C. November 1. amendment 608). November 1. November 1. 2006 (see Appendix C. November 1. 1994 (see Appendix C. (Treating LSD on a carrier medium as weighing 0. November 1. amendment 509). 1987. 2009 (see Appendix C. amendment 318). 2001 (see Appendix C. amendments 555 and 556). amendments 479. amendments 727 and 728). the approach decided upon by the Commission will harmonize offense levels for LSD offenses with those for other controlled substances and avoid an undue influence of varied carrier weight on the applicable offense level. 2006 (see Appendix C. Attempt or Conspiracy (a) Base Offense Level (Apply the greatest): (1) 2 plus the offense level from §2D1. otherwise. 1990 (see Appendix C. 302. amendments 369-371 and 394-396). and 303). September 23. November 1. November 1. amendments 19. 1919 (1991) (holding that the term "mixture or substance" in 21 U. and 21). §2D1. amendments 446 and 447). May 1. May 1. if the offense involved a person less than eighteen years of age. this approach does not override the applicability of "mixture or substance" for the purpose of applying any mandatory minimum sentence (see Chapman. November 1. 1997 (see Appendix C. in a broader form. amendments 667. the inclusion of some weight attributable to the carrier medium recognizes (A) that offense levels for most other controlled substances are based upon the weight of the mixture containing the controlled substance without regard to purity. 2005 (see Appendix C. amendment 657). November 1. 1988 (see Appendix C.2.1 GUIDELINES MANUAL November 1. § 841(b)(1) includes the carrier medium in which LSD is absorbed). December 16. 2004 (see Appendix C. 1992 (see Appendix C. amendments 594 and 605). 2003 (see Appendix C. 1993 (see Appendix C. Nonetheless.1 applicable to the quantity of controlled substances directly involving a protected location or an underage or pregnant individual. or 1 plus the offense level from §2D1. §5G1. amendments 684 and 687). November 1. amendment 505). Drug Offenses Occurring Near Protected Locations or Involving Underage or Pregnant Individuals. 2000 (see Appendix C. 2002 (see Appendix C. 111 S.C. November 1.1(b)). 2007 (see Appendix C. and 499). (2) (3) (4) – 164 – . amendments 609-611). November 1.

the offense level from subsection (a)(1) would be level 16 (2 plus the offense level for the sale of 5 grams of heroin. 861 (formerly 21 U. Application Note: 1. 1988 (see Appendix C. 1988 (see Appendix C. sold 5 grams of heroin near a protected location and 10 grams of heroin elsewhere.S. amendment 447). 1991 (see Appendix C. amendment 135).3. 1987. the offense level from subsection (a)(2) would be level 17 (1 plus the offense level for the sale of 15 grams of heroin. 2009 GUIDELINES MANUAL §2D1. 860 (formerly 21 U. 1987. amendment 319). amendment 22). 1989 (see Appendix C. to Pregnant Women. effective November 1. effective November 1.3 (Distributing Controlled Substances to Individuals Younger than Twenty-One Years. 1989 (see Appendix C. was deleted by consolidation with the guidelines applicable to the underlying substantive offenses effective November 1.S. the total amount of heroin involved in the offense). amendments 136-138). amended effective January 15. § 845b). November 1. §§ 859 (formerly 21 U. amendment 23). § 845a). 2000 (see Appendix C. amendment 135). See §1B1. 1992 (see Appendix C.S. § 845). Attempt or Conspiracy (a) Base Offense Level (Apply the greater): – 165 – . Continuing Criminal Enterprise. §2D1. November 1.5. In a case involving such a conviction but in which only part of the relevant offense conduct directly involved a protected location or an underage or pregnant individual. §2D1. if the defendant.C. 1990 (see Appendix C.5 Commentary Statutory Provisions: 21 U. November 1. was deleted by consolidation with §2D1. as part of the same course of conduct or common scheme or plan.4.November 1. amendment 421). Historical Note: Effective November 1. This guideline applies only in a case in which the defendant is convicted of a statutory violation of drug trafficking in a protected location or involving an underage or pregnant individual (including an attempt or conspiracy to commit such a violation) or in a case in which the defendant stipulated to such a statutory violation.4 (Attempts and Conspiracies).2 effective November 1.C.C. November 1. 1987. amendment 591). For example. 1992 (see Appendix C. [Deleted] Historical Note: Section 2D1. amended effective November 1. subsections (a)(1) and (a)(2) may result in different offense levels.2(a).C.S. §2D1. Amended effective January 15. the amount sold near the protected location). amendment 447). [Deleted] Historical Note: Section 2D1. or Within 1000 Feet of a School or College). Background: This section implements the direction to the Commission in Section 6454 of the AntiDrug Abuse Act of 1988. 1989 (see Appendix C. November 1.

S.C. Under 21 U. – 166 – . November 1.S.1(b).5 (1) GUIDELINES MANUAL November 1. 1988 (see Appendix C. Do not apply any adjustment from Chapter Three. § 848. an upward departure may be warranted. § 848 establishes that a defendant controlled and exercised authority over one of the most serious types of ongoing criminal activity. Violations of 21 U. See §5G1." A sentence resulting from a conviction sustained prior to the last overt act of the instant offense is to be considered a prior sentence under §4A1. § 848 will be grouped with other drug offenses for the purpose of applying Chapter Three. 2. the statutory minimum shall be the guideline sentence. 3. § 848. If as part of the enterprise the defendant sanctioned the use of violence. amendment 447). Part D (Multiple Counts).C.1 applicable to the underlying offense. § 848 provides a 20-year minimum mandatory penalty for the first conviction. Historical Note: Effective November 1. certain conduct for which the defendant has previously been sentenced may be charged as part of the instant offense to establish a "continuing series of violations. Use of Communication Facility in Committing Drug Offense. November 1. 4.S.C. §2D1.§2D1. and a mandatory life sentence for principal administrators of extremely large enterprises.C.6. 1989 (see Appendix C. Part B is not authorized because the offense level of this guideline already reflects an adjustment for role in the offense. Commentary (2) Statutory Provision: 21 U. 2009 4 plus the offense level from §2D1. Background: Because a conviction under 21 U. Amended effective October 15.C. Part B (Role in the Offense). or 38. An adjustment from Chapter Three. amendment 139). 1987. 1992 (see Appendix C. Application Notes: 1. or if the number of persons managed by the defendant was extremely large. amendment 66). this guideline provides a minimum base offense level of 38. Attempt or Conspiracy (a) Base Offense Level: the offense level applicable to the underlying offense. a 30-year minimum mandatory penalty for a second conviction. If the application of the guidelines results in a sentence below the minimum sentence required by statute. Title 21 U.2(a)(1) and not part of the instant offense.S.S.

1 provides a minimum offense level of 12 where the offense involves heroin (or other Schedule I or II opiates). §2D1.7 Commentary Statutory Provision: 21 U. Importing.S. PCP. November 1. Amended effective November 1. e.1. Background: This section covers the use of a communication facility in committing a drug offense. a minimum offense level of 8 where the offense involves flunitrazepam (§2D1. 1987. or fentanyl analogue (§2D1. Application Note: 1. or manufacturer. methamphetamine. amendment 505). November 1. see Application Note 12 of the Commentary to §2D1. A communication facility includes any public or private instrument used in the transmission of writing. Historical Note: Effective November 1. Where the offense level for the underlying offense is to be determined by reference to §2D1. 1990 (see Appendix C. Exporting. pictures. and sound. § 857). cocaine base. Conversely. § 863 (formerly 21 U. Attempt or Conspiracy (a) (b) Base Offense Level: 12 Cross Reference (1) If the offense involved a controlled substance. as appropriate. distributor.1(c)(16)).1(c)(14)). § 843(b). 1992 (see Appendix C. The typical case addressed by this guideline involves small-scale trafficking in drug paraphernalia (generally from a retail establishment that also sells items that are not unlawful). wire. Note that the Drug Quantity Table in §2D1. amendment 447). 2009 (see Appendix C. signals. amendment 737). 2009 GUIDELINES MANUAL §2D1. apply §2D1. amendment 320). an upward departure may be warranted. where the offense was not committed for pecuniary – 167 – . In a case involving a large-scale dealer.C. or Trafficking) or §2D2. signs. and a minimum offense level of 6 otherwise (§2D1. radio.7. LSD (or other Schedule I or II hallucinogens).1 for guidance in determining the scale of the offense.1(c)(17)). fentanyl.November 1.. cocaine (or other Schedule I or II stimulants). telephone.g. 1994 (see Appendix C. Application Note: 1.S. if the resulting offense level is greater than that determined above.1 (Unlawful Manufacturing.C. November 1.S.C. Unlawful Sale or Transportation of Drug Paraphernalia. Commentary Statutory Provision: 21 U.1 (Unlawful Possession).

or a defendant who otherwise assisted in the commission of the underlying controlled substance offense. November 1. amendment 447). subsection (a)(2) does not apply if the defendant had previously allowed any premises to be used as a drug establishment without regard to whether such prior misconduct resulted in a conviction. Commentary Statutory Provision: 21 U. purchased. 1987. the offense level shall be 4 levels less than the offense level from §2D1.1 applicable to the underlying controlled substance offense. Amended effective November 1. If the defendant had no participation in the underlying controlled substance offense other than allowing use of the premises.. For example.8. transportation for the defendant’s personal use). amendment 397). 1991 (see Appendix C. do not apply an adjustment under §3B1. Historical Note: Effective November 1. (2) (b) Special Instruction (1) If the offense level is determined under subsection (a)(2). rented. except as provided below. § 856.C. Renting or Managing a Drug Establishment. 1992 (see Appendix C. Subsection (a)(2) does not apply unless the defendant had no participation in the underlying controlled substance offense other than allowing use of the premises. subsection (a)(2) does not apply unless the defendant initially leased.g. but not greater than level 26. Furthermore. Application Note: 1. Finally.§2D1.1 applicable to the underlying controlled substance offense.7 GUIDELINES MANUAL November 1. §2D1.2 (Mitigating Role). 2009 gain (e. Attempt or Conspiracy (a) Base Offense Level: (1) The offense level from §2D1. subsection (a)(2) would not apply to a defendant who possessed a dangerous weapon in connection with the offense. a downward departure may be warranted. a defendant who guarded the cache of controlled substances. a defendant who made telephone calls to facilitate the underlying controlled substance offense. a defendant who arranged for the use of the premises for the purpose of facilitating a drug transaction. – 168 – . a defendant who allowed the use of more than one premises.S. or otherwise acquired a possessory interest in the premises for a legitimate purpose.

November 1. Amended effective November 1.S. §2D1. amendment 646). amendment 394). (B) – 169 – . Specific Offense Characteristic (1) (Apply the greater): (A) If the offense involved the manufacture of amphetamine or methamphetamine. storing. Background: This section covers the offense of assembling.1. § 841(d)(1).10. room. November 1. managing. 1992 (see Appendix C. 2009 GUIDELINES MANUAL §2D1. amendment 640).C. 1991 (see Appendix C. 1992 (see Appendix C. Attempt or Conspiracy (a) Base Offense Level (Apply the greater): (1) (2) (b) 3 plus the offense level from the Drug Quantity Table in §2D1.g. If the resulting offense level is less than level 27. If the offense (i) involved the manufacture of amphetamine or methamphetamine. or using a controlled substance contrary to law (e. 1987. Placing or Maintaining Dangerous Devices on Federal Property to Protect the Unlawful Production of Controlled Substances. Attempt or Conspiracy (a) Base Offense Level: 23 Commentary Statutory Provision: 21 U. or controlling any building. amendment 447). November 1. increase to level 30.9. 2002 (see Appendix C. and (ii) created a substantial risk of harm to the life of a minor or an incompetent. §2D1. increase by 3 levels.10 Background: This section covers the offense of knowingly opening. 1987. Endangering Human Life While Illegally Manufacturing a Controlled Substance. distributing. maintaining. or causing to be placed. Historical Note: Effective November 1. Historical Note: Effective November 1. 2002 (see Appendix C. a "crack house"). increase by 6 levels. Amended effective November 1..November 1. If the resulting offense level is less than level 30. increase to level 27. or enclosure for the purpose of manufacturing. or maintaining a "booby-trap" on federal property where a controlled substance is being manufactured or distributed. amendments 447 and 448). placing. or 20.

— (A) Factors to Consider. for purposes of subsection (b)(1)(B).1 (Criminal Sexual Abuse). Historical Note: Effective November 1. whether the offense created a substantial risk of harm to the life of a minor or an incompetent. amendment 608). 2000 (see Appendix C. except that if (A) the defendant receives an adjustment under §3B1. mental retardation. and (B) the base offense – 170 – .g.2 (Mitigating Role). and the likelihood of release into the environment of hazardous or toxic substances. Amended effective November 1.S. and the extent of the manufacturing operation.10 GUIDELINES MANUAL November 1. Background: Subsection (b)(1) implements the instruction to the Commission in section 102 of Public Law 106–310. amendment 140). 1989 (see Appendix C. 2001 (see Appendix C. § 858. The location of the laboratory (e. Application Note: 1. (ii) (iii) (iv) (B) Definitions.. The duration of the offense. §2D1.—For purposes of subsection (b)(1)(B): "Incompetent" means an individual who is incapable of taking care of the individual’s self or property because of a mental or physical illness or disability.11. 1992 (see Appendix C. Exporting or Possessing a Listed Chemical. November 1. Unlawfully Distributing. the court shall include consideration of the following factors: (i) The quantity of any chemicals or hazardous or toxic substances found at the laboratory. whether the laboratory is located in a residential neighborhood or a remote area).C. 2009 Commentary Statutory Provision: 21 U. and the number of human lives placed at substantial risk of harm.§2D1. Importing. amendment 620). Substantial Risk of Harm Associated with the Manufacture of Amphetamine and Methamphetamine. Attempt or Conspiracy (a) Base Offense Level: The offense level from the Chemical Quantity Table set forth in subsection (d) or (e).— In determining. December 16. The manner in which hazardous or toxic substances were disposed. amendment 447). "Minor" has the meaning given that term in Application Note 1 of the Commentary to §2A3. or senility. and the manner in which the chemicals or substances were stored. as appropriate.

C. or (B) the unlawful transportation. increase by 2 levels. treatment. – 171 – . 2009 GUIDELINES MANUAL §2D1. Exporting. or (d)(4).11 level under subsection (d) is (i) level 32. distributed a listed chemical through mass-marketing by means of an interactive computer service. or a person for whose conduct the defendant is accountable under §1B1. decrease by 3 levels. (ii) level 34 or level 36. or (iii) level 38. emission.S. increase by 2 levels. (d)(3). or § 960(d)(2). apply §2D1. storage. § 865. If the defendant is convicted under 21 U. (2) (3) (4) (5) (c) Cross Reference (1) If the offense involved unlawfully manufacturing a controlled substance. increase by 2 levels. decrease by 3 levels. decrease by 4 levels. If the offense involved (A) an unlawful discharge.C. Importing. or attempting to manufacture a controlled substance unlawfully. or release into the environment of a hazardous or toxic substance.S. If the defendant is convicted of violating 21 U. increase by 2 levels. or disposal of a hazardous waste. (b) Specific Offense Characteristics (1) If a dangerous weapon (including a firearm) was possessed.1 (Unlawful Manufacturing. Trafficking) if the resulting offense level is greater than that determined above.November 1.3 (Relevant Conduct). decrease by 2 levels. If the defendant. § 841(c)(2) or (f)(1). unless the defendant knew or believed that the listed chemical was to be used to manufacture a controlled substance unlawfully.

PSEUDOEPHEDRINE. At least 300 G but less than 1 KG of Phenylpropanolamine. At least 40 G but less than 70 G of Phenylpropanolamine. At least 100 G but less than 300 G of Pseudoephedrine. AND PHENYLPROPANOLAMINE QUANTITY TABLE* (Methamphetamine and Amphetamine Precursor Chemicals) Quantity (1) 3 KG or more of Ephedrine. At least 70 G but less than 100 G of Pseuodoephedrine. At least 10 G but less than 40 G of Phenylpropanolamine. At least 100 G but less than 300 G of Ephedrine. At least 6 G but less than 8 G of Pseudoephedrine.§2D1. At least 70 G but less than 100 G of Phenylpropanolamine. 3 KG or More of Pseudoephedrine. 3 KG or more of Phenylpropanolamine. At least 6 G but less than 8 G of Ephedrine. At least 1 KG but less than 3 KG of Ephedrine. At least 8 G but less than 10 G of Ephedrine. At least 1 KG but less than 3 KG of Pseudoephedrine. At least 300 G but less than 1 KG of Ephedrine. At least 10 G but less than 40 G of Ephedrine. At least 6 G but less than 8 G of Phenylpropanolamine. At least 300 G but less than 1 KG of Pseudoephedrine. At least 70 G but less than 100 G of Ephedrine. At least 1 KG but less than 3 KG of Phenylpropanolamine. At least 40 G but less than 70 G of Pseudoephedrine. At least 8 G but less than 10 G of Phenylpropanolamine. Base Offense Level Level 38 (2) Level 36 (3) Level 34 (4) Level 32 (5) Level 30 (6) Level 28 (7) Level 26 (8) Level 24 (9) Level 22 – 172 – . At least 10 G but less than 40 G of Pseudoephedrine. At least 40 G but less than 70 G of Ephedrine.11 GUIDELINES MANUAL November 1. 2009 (d) EPHEDRINE. At least 8 G but less than 10 G of Pseudoephedrine. At least 100 G but less than 300 G of Phenylpropanolamine.

320 KG or more of Isosafrole. Level 18 Level 16 Level 14 Level 12 (e) CHEMICAL QUANTITY TABLE* (All Other Precursor Chemicals) Listed Chemicals and Quantity (1) List I Chemicals 890 G or more of Benzaldehyde. 10 KG or more of Norpseudoephedrine.11 Level 20 (10) At least 4 G but less than 6 G of Ephedrine. 500 KG or more of N-Methylephedrine. Less than 500 MG of Phenylpropanolamine. 10 KG or more of Piperidine. At least 1 G but less than 2 G of Phenylpropanolamine. (12) At least 1 G but less than 2 G of Ephedrine.2 KG or more of Hydriodic Acid. (13) At least 500 MG but less than 1 G of Ephedrine. 625 G or more of Nitroethane. (14) Less than 500 MG of Ephedrine. At least 2 G but less than 4 G of Pseudoephedrine.6 KG or more of Propionic Anhydride. 320 KG or more of Piperonal. 20 KG or more of Phenylacetic Acid. At least 4 G but less than 6 G of Phenylpropanolamine. Less than 500 MG of Pseudoephedrine. 20 KG or more of Benzyl Cyanide. At least 500 MG but less than 1 G of Pseudoephedrine. Base Offense Level Level 30 – 173 – . At least 1 G but less than 2 G of Pseudoephedrine. 320 KG or more of Safrole. 200 G or more of Ergonovine. At least 2 G but less than 4 G of Phenylpropanolamine. 200 G or more of Methylamine.November 1. At least 4 G but less than 6 G of Pseudoephedrine. 2. (11) At least 2 G but less than 4 G of Ephedrine. 400 KG or more of 3. 500 KG or more of N-Methylpseudoephedrine. At least 500 MG but less than 1 G of Phenylpropanolamine. 1. 20 KG or more of Ethylamine. 400 G or more of Ergotamine. 4-Methylenedioxyphenyl-2-propanone. 2009 GUIDELINES MANUAL §2D1.

2 G or more of Iodine.7 L but less than 1135. At least 660 G but less than 2.5 L of Gamma-butyrolactone. List II Chemicals 11 KG or more of Acetic Anhydride. At least 40 G but less than 120 G of Ergotamine. 1200 KG or more of Methyl Ethyl Ketone. At least 62. 1075 KG or more of Ethyl Ether. 10 KG or more of Potassium Permanganate. At least 3 KG but less than 10 KG of Piperidine. At least 50 KG but less than 150 KG of N-Methylpseudoephedrine. 20 KG or more of Benzyl Chloride. At least 2 KG but less than 6 KG of Benzyl Cyanide.5 L or more of Gamma-butyrolactone. At least 120 KG but less than 400 KG of 3. 1175 KG or more of Acetone. At least 120 G but less than 400 G of Ergotamine. At least 6 KG but less than 20 KG of Phenylacetic Acid.6 KG of Propionic Anhydride. At least 50 KG but less than 150 KG of N-Methylephedrine. (3) List I Chemicals At least 89 G but less than 267 G of Benzaldehyde. At least 6 KG but less than 20 KG of Ethylamine. At least 3 KG but less than 10 KG of Norpseudoephedrine. At least 150 KG but less than 500 KG of N-Methylephedrine. 4-Methylenedioxyphenyl-2-propanone. 714 G or more of Red Phosphorus. 1300 KG or more of Toluene. At least 480 G but less than 1.5 G but less than 625 G of Nitroethane. Level 26 – 174 – . At least 2 KG but less than 6 KG of Ethylamine. At least 96 KG but less than 320 KG of Isosafrole. At least 32 KG but less than 96 KG of Isosafrole. or Hypophosphorous Acid. At least 6 KG but less than 20 KG of Benzyl Cyanide. At least 187. 2009 1135. White Phosphorus. At least 96 KG but less than 320 KG of Safrole.5 G but less than 187. or Hypophosphorous Acid. At least 20 G but less than 60 G of Methylamine. At least 96 KG but less than 320 KG of Piperonal. White Phosphorus. At least 20 G but less than 60 G of Ergonovine. At least 60 G but less than 200 G of Ergonovine.§2D1. At least 214 G but less than 714 G of Red Phosphorus. At least 340. 376.2 KG of Hydriodic Acid.5 G of Nitroethane. At least 220 G but less than 660 G of Hydriodic Acid. At least 60 G but less than 200 G of Methylamine. (2) List I Chemicals Level 28 At least 267 G but less than 890 G of Benzaldehyde. At least 150 KG but less than 500 KG of N-Methylpseudoephedrine.11 GUIDELINES MANUAL November 1.

(4) List I Chemicals Level 24 At least 62. At least 35 KG but less than 50 KG of N-Methylpseudoephedrine.5 KG but less than 1075 KG of Ethyl Ether. At least 700 G but less than 1 KG of Piperidine. At least 22. 4-Methylenedioxyphenyl-2-propanone. At least 2 KG but less than 6 KG of Phenylacetic Acid. At least 50 G but less than 71 G of Red Phosphorus.4 KG but less than 32 KG of Isosafrole. At least 322. At least 3 KG but less than 10 KG of Potassium Permanganate.5 G of Nitroethane.2 G of Iodine.4 KG but less than 2 KG of Phenylacetic Acid. or Hypophosphorous Acid. White Phosphorus.4 KG but less than 2 KG of Ethylamine. At least 14 G but less than 20 G of Methylamine. List II Chemicals At least 3.3 G but less than 89 G of Benzaldehyde. At least 352.5 KG of Acetone. or Hypophosphorous Acid.3 KG but less than 11 KG of Acetic Anhydride. At least 1 KG but less than 3 KG of Piperidine.5 KG but less than 1175 KG of Acetone. At least 390 KG but less than 1300 KG of Toluene. At least 112 G but less than 160 G of Propionic Anhydride. At least 2 KG but less than 6 KG of Benzyl Chloride. At least 700 G but less than 1 KG of Norpseudoephedrine. At least 360 KG but less than 1200 KG of Methyl Ethyl Ketone. At least 125. At least 113.4 G but less than 376. At least 28 KG but less than 40 KG of 3. At least 40 KG but less than 120 KG of 3.1 KG but less than 3. – 175 – .4 KG but less than 32 KG of Piperonal.4 KG but less than 2 KG of Benzyl Cyanide. At least 1.November 1.7 L of Gamma-butyrolactone.4 KG but less than 32 KG of Safrole. At least 32 KG but less than 96 KG of Safrole.5 KG but less than 352. List II Chemicals At least 1.8 G but less than 62. At least 79.3 KG of Acetic Anhydride. At least 1. At least 117. At least 6 KG but less than 20 KG of Benzyl Chloride. White Phosphorus.6 L of Gamma-butyrolactone. 2009 GUIDELINES MANUAL §2D1.6 L but less than 340. 4-Methylenedioxyphenyl-2-propanone.11 At least 1 KG but less than 3 KG of Norpseudoephedrine. At least 1. At least 35 KG but less than 50 KG of N-Methylephedrine. At least 154 G but less than 220 G of Hydriodic Acid. At least 22. At least 22. At least 14 G but less than 20 G of Ergonovine. At least 43.5 L but less than 113. At least 71 G but less than 214 G of Red Phosphorus. At least 28 G but less than 40 G of Ergotamine. 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 50. At least 75.1 KG of Acetic Anhydride.8 G but less than 125.4 KG of Safrole. At least 91 KG but less than 130 KG of Toluene. At least 8 G but less than 14 G of Methylamine. At least 200 G but less than 800 G of Ethylamine. At least 88 G but less than 154 G of Hydriodic Acid. At least 130 KG but less than 390 KG of Toluene. At least 20 KG but less than 35 KG of N-Methylephedrine. At least 16 G but less than 28 G of Ergotamine.8 G of Nitroethane. At least 800 G but less than 1. At least 400 G but less than 700 G of Norpseudoephedrine. At least 45.8 KG but less than 22. At least 400 G but less than 700 G of Piperidine. At least 3. At least 29 G but less than 50 G of Red Phosphorus. At least 64 G but less than 112 G of Propionic Anhydride.6 G of Benzaldehyde.2 G but less than 87. (5) List I Chemicals Level 22 At least 35.25 KG but less than 117.3 G of Benzaldehyde.4 KG of Piperonal.5 KG but less than 322.5 L of Gamma-butyrolactone. 2009 At least 107. At least 12. At least 8 G but less than 14 G of Ergonovine.4 KG but less than 2 KG of Benzyl Chloride. Level 20 – 176 – .8 KG of Isosafrole. At least 2 G but less than 8 G of Ergonovine. or Hypophosphorous Acid.4 L but less than 79. At least 120 KG but less than 360 KG of Methyl Ethyl Ketone.8 KG but less than 22.9 G but less than 35.2 KG but less than 12. List II Chemicals At least 726 G but less than 1. At least 20 KG but less than 35 KG of N-Methylpseudoephedrine. At least 1. At least 12.6 G but less than 62. At least 4 G but less than 16 G of Ergotamine.8 G of Iodine. At least 800 G but less than 1.4 KG of Ethylamine. At least 87. 4-Methylenedioxyphenyl-2-propanone. At least 82.4 KG of Benzyl Cyanide. At least 1 KG but less than 3 KG of Potassium Permanganate. (6) List I Chemicals At least 8. At least 2 G but less than 8 G of Methylamine. At least 12.8 KG but less than 22. At least 16 KG but less than 28 KG of 3.11 GUIDELINES MANUAL November 1. At least 84 KG but less than 120 KG of Methyl Ethyl Ketone.5 KG of Ethyl Ether. White Phosphorus.4 KG of Phenylacetic Acid.§2D1. At least 700 G but less than 1 KG of Potassium Permanganate.5 KG of Ethyl Ether.25 KG but less than 107. At least 200 G but less than 800 G of Benzyl Cyanide.4 KG of Isosafrole.4 G of Iodine. At least 800 G but less than 1. At least 22 G but less than 88 G of Hydriodic Acid.5 KG of Acetone. At least 25 G but less than 43.

2 G of Iodine. At least 3. At least 400 G but less than 700 G of Potassium Permanganate. 2009 GUIDELINES MANUAL §2D1. At least 4 KG but less than 16 KG of 3. At least 4 KG but less than 5 KG of N-Methylpseudoephedrine. At least 2. At least 12.6 G but less than 22 G of Hydriodic Acid.2 KG of Piperonal.8 KG of Safrole. At least 160 G but less than 200 G of Benzyl Cyanide. – 177 – . or Hypophosphorous Acid.2 KG but less than 4 KG of 3.2 KG of Isosafrole. At least 2. At least 100 G but less than 400 of Norpseudoephedrine. (7) List I Chemicals Level 18 At least 7. At least 160 G but less than 200 G of Ethylamine.2 KG but less than 12. At least 7 G but less than 29 G of Red Phosphorus. At least 1.9 G of Benzaldehyde.4 L but less than 45.56 KG but less than 3.November 1. At least 9.4 L of Gamma-butyrolactone. At least 16 G but less than 64 G of Propionic Anhydride.1 G but less than 8. 4-Methylenedioxyphenyl-2-propanone.56 KG but less than 3.25 KG of Ethyl Ether.6 G but less than 2 G of Methylamine. At least 48 KG but less than 84 KG of Methyl Ethyl Ketone.8 G but less than 16 G of Propionic Anhydride.25 KG of Acetone. At least 200 G but less than 800 G of Phenylacetic Acid. White Phosphorus. At least 1.2 G but less than 4 G of Ergotamine. At least 6 G but less than 7 G of Red Phosphorus. At least 52 KG but less than 91 KG of Toluene. At least 12. At least 4 KG but less than 5 KG of N-Methylephedrine. At least 43 KG but less than 75.3 G of Nitroethane.2 KG of Safrole. List II Chemicals At least 440 G but less than 726 G of Acetic Anhydride. At least 2.6 G but less than 2 G of Ergonovine. At least 3. At least 11. At least 6.56 KG but less than 3. At least 100 G but less than 400 G of Piperidine. At least 800 G but less than 1.2 KG but less than 12.11 At least 5 KG but less than 20 KG of N-Methylephedrine. At least 80 G but less than 100 G of Norpseudoephedrine. At least 160 G but less than 200 G of Phenylacetic Acid.3 G but less than 25 G of Nitroethane. or Hypophosphorous Acid.1 L but less than 11. White Phosphorus. 4-Methylenedioxyphenyl-2-propanone.4 KG of Benzyl Chloride. At least 5 G but less than 6.4 L of Gamma-butyrolactone. At least 47 KG but less than 82.8 KG of Piperonal. At least 80 G but less than 100 G of Piperidine. At least 3. At least 3. At least 17. At least 5 KG but less than 20 KG of N-Methylpseudoephedrine.5 G but less than 50.

5 G but less than 10 G of Iodine.6 KG of Anthranilic Acid.75 KG of Ethyl Ether. At least 12 KG but less than 48 KG of Methyl Ethyl Ketone.7 KG but less than 3. At least 3 KG but less than 4 KG of N-Methylephedrine.6 G of Methylamine. At least 5. White Phosphorus.§2D1. At least 10.6 G of Ergonovine. At least 120 G but less than 160 G of Phenylacetic Acid. At least 60 G but less than 80 G of Piperidine.3 G but less than 7. At least 160 G but less than 200 G of Benzyl Chloride. At least 2. At least 9. At least 8.92 KG but less than 2.8 KG or more of N-Acetylanthranilic Acid.11 GUIDELINES MANUAL November 1. At least 11. At least 120 G but less than 160 G of Ethylamine.56 KG of Safrole.6 KG but less than 12 KG of Methyl Ethyl Ketone. At least 9.2 KG of 3. or Hypophosphorous Acid.6 G but less than 12.8 G of Propionic Anhydride. 4. At least 7. (8) List I Chemicals Level 16 3. At least 13. At least 1.1 G of Benzaldehyde. At least 9.56 KG of Isosafrole.2 G of Ergotamine.2 G but less than 1. At least 100 G but less than 400 G of Potassium Permanganate. At least 13 KG but less than 52 KG of Toluene. At least 10 G but less than 12. Level 14 – 178 – . 4-Methylenedioxyphenyl-2-propanone. At least 120 G but less than 160 G of Benzyl Cyanide.1 L of Gamma-butyrolactone.5 G of Iodine. At least 80 G but less than 100 G of Potassium Permanganate.92 KG but less than 2. (9) List I Chemicals At least 2. At least 4 G but less than 6 G of Red Phosphorus. 2009 List II Chemicals At least 110 G but less than 440 G of Acetic Anhydride. At least 1.4 KG but less than 13 KG of Toluene. List II Chemicals At least 88 G but less than 110 G of Acetic Anhydride.4 KG but less than 11.6 G but less than 5.75 KG but less than 47 KG of Acetone. At least 2.92 KG but less than 2. At least 3 KG but less than 4 KG of N-Methylpseudoephedrine. At least 1.3 G of Benzaldehyde. At least 3. At least 200 G but less than 800 G of Benzyl Chloride. At least 1. At least 6.4 G but less than 3.6 KG but less than 10.6 G of Hydriodic Acid. At least 1.6 KG or more of Anthranilic Acid.8 G but less than 5 G of Nitroethane. At least 60 G but less than 80 G of Norpseudoephedrine.2 G but less than 17.56 KG of Piperonal.75 KG of Acetone.4 KG but less than 3.75 KG but less than 43 KG of Ethyl Ether.2 G but less than 1. At least 10.8 L but less than 9. At least 3.

At least 40 G but less than 60 G of Norpseudoephedrine.4 KG of 3.2 G of Hydriodic Acid. Less than 80 G of Benzyl Cyanide. At least 800 MG but less than 1.92 KG of Safrole.45 KG but less than 8. At least 2. At least 1. At least 80 G but less than 120 G of Ethylamine. Less than 1.25 KG of N-Methylpseudoephedrine. At least 60 G but less than 80 G of Potassium Permanganate.6 KG of Methyl Ethyl Ketone. At least 80 G but less than 120 G of Phenylacetic Acid. At least 7.11 At least 80 G but less than 120 G of Benzyl Cyanide.4 G of Ergotamine. At least 6. 2009 GUIDELINES MANUAL §2D1.92 KG of Piperonal.8 G of Hydriodic Acid. List II Chemicals At least 66 G but less than 88 G of Acetic Anhydride.6 G but less than 2.4 KG of Acetone.8 G of Nitroethane.5 G but less than 3.5 G of Iodine. At least 2. At least 2. At least 7.6 KG but less than 4. At least 3. At least 120 G but less than 160 G of Benzyl Chloride. (10) List I Chemicals Less than 2.6 KG of N-Acetylanthranilic Acid.2 KG but less than 9.8 KG but less than 2. Less than 2.6 G of Benzaldehyde. At least 7. At least 4. At least 7.November 1.25 KG of N-Methylephedrine. At least 5 G but less than 7.92 KG of Isosafrole.6 G of Propionic Anhydride.44 KG but less than 1. White Phosphorus.8 KG but less than 10. Less than 3. Less than 40 G of Norpseudoephedrine.5 G of Nitroethane. Less than 800 MG of Methylamine.2 G of Methylamine.2 G of Ergonovine.6 KG of Ethyl Ether.25 KG but less than 3 KG of N-Methylpseudoephedrine. At least 1. Less than 80 G of Phenylacetic Acid.8 G but less than 13. At least 1.44 KG of Isosafrole. Less than 2.7 KG of Anthranilic Acid. Less than 80 G of Ethylamine. Level 12 – 179 – . At least 40 G but less than 60 G of Piperidine.44 KG but less than 1. At least 1. or Hypophosphorous Acid.6 G of Ergotamine.44 KG but less than 1.8 L of Gamma-butyrolactone. 4-Methylenedioxyphenyl-2-propanone. At least 1.2 G but less than 9.05 KG but less than 9. Less than 3.4 KG of Toluene. Less than 1. Less than 8. At least 3 G but less than 4 G of Red Phosphorus. Less than 800 MG of Ergonovine.5 L but less than 6. Less than 2. At least 8. At least 800 MG but less than 1.8 KG of N-Acetylanthranilic Acid.25 KG but less than 3 KG of N-Methylephedrine.

– 180 – .45 KG of Ethyl Ether.44 KG of Piperonal. 865.3 (Relevant 2. as appropriate. Commentary Statutory Provisions: 21 U. Less than 7.1 (Application Instructions). "Firearm" and "dangerous weapon" are defined in the Commentary to §1B1.S. list I or list II) under subsection (d) or (e) of this guideline. Application Notes: 1. 2009 Less than 40 G of Piperidine.44 KG of Safrole. White Phosphorus. Less than 1.2 G of Propionic Anhydride. List II Chemicals Less than 66 G of Acetic Anhydride. §§ 841(c)(1). means that the defendant.2 KG of Methyl Ethyl Ketone. use the weight of the ephedrine." as used in subsection (c)(1).e. to calculate the base offense level in an offense that involves two or more chemicals. unless it is improbable that the weapon was connected with the offense. Pseudoephedrine. not the weight of the entire tablets. 960(d)(1). Less than 120 G of Benzyl Chloride. and Phenylpropanolamine Quantity Table. (i) aggregate the quantities of all such chemicals. (C) In a case involving ephedrine. Less than 60 G of Potassium Permanganate. Less than 1. (f)(1).8 KG of 3. ______________ *Notes: (A) Except as provided in Note (B). or phenylpropanolamine tablets. (2). (B) To calculate the base offense level in an offense that involves two or more chemicals each of which is set forth in the Ephedrine. (2). use the quantity of the single chemical that results in the greatest offense level. Less than 7. regardless of whether the chemicals are set forth in different tables or in different categories (i. Less than 6. or Hypophosphorous Acid.§2D1. and (ii) determine the base offense level corresponding to the aggregate quantity. Less than 7. pseudoephedrine.5 L of Gamma-butyrolactone. "Offense involved unlawfully manufacturing a controlled substance or attempting to manufacture a controlled substance unlawfully. in calculating the base offense level. Less than 5 G of Iodine. (4). Less than 3 G of Red Phosphorus. or a person for whose conduct the defendant is accountable under §1B1.C. The adjustment in subsection (b)(1) should be applied if the weapon was present. Less than 7. Less than 4. pseudoephedrine. (3).11 GUIDELINES MANUAL November 1. or phenylpropanolamine contained in the tablets.. 4-Methylenedioxyphenyl-2-propanone. Less than 1.05 KG of Acetone.8 KG of Toluene.

1 (Unlawfully Manufacturing.1).e. or Trafficking). list I or list II) under this guideline. Determine the offense level under each guideline separately.. Note that in determining the scale of the offense under §2D1.November 1. The offense level for methylamine is determined by using §2D1. (i) aggregate the quantities of all such chemicals.— (A) Determining the Base Offense Level for Two or More Chemicals. an aggregate quantity of 130 grams of such chemicals. In certain cases. Under the grouping rules of §3D1. 300 grams of hydriodic acid result in a base offense level of level 26. regardless of whether the chemicals are set forth in different tables or in different categories (i.—If the offense involves two or more chemicals each of which is set forth in the Ephedrine.1 (P2P is listed in the Drug Equivalency Table under Cocaine and Other Schedule I and II Stimulants (and their immediate precursors)). Pseudoephedrine. completed the actions sufficient to constitute the offense of unlawfully manufacturing a controlled substance or attempting to manufacture a controlled substance unlawfully.2(b).—In a case involving two or more chemicals used to manufacture different controlled substances. the counts will be grouped together.1.—Except as provided in subdivision (B). For example. the defendant will be convicted of an offense involving a listed chemical covered under this guideline. use the quantity of the single chemical that results in the greatest offense level. The base offense level corresponding to that aggregate quantity is level 32. 2009 GUIDELINES MANUAL §2D1. and Phenylpropanolamine Quantity Table. The offense level for P2P is determined by using §2D1. if the offense involves two or more chemicals. 3. Pseudoephedrine. The base offense level for each chemical is calculated separately and the chemical with the higher base offense level is used. and (ii) determine the base offense level corresponding to the aggregate quantity. and a related offense involving an immediate precursor or other controlled substance covered under §2D1. 4. the quantity of both the controlled substance and listed chemical should be considered (see Application Note 12 in the Commentary to §2D1. (C) Upward Departure.11. In this case. Importing. an upward departure may be warranted if the offense level does not adequately address the seriousness of the offense. – 181 – .11 Conduct). P2P (an immediate precursor) and methylamine (a listed chemical) are used together to produce methamphetamine. Five kilograms of ephedrine result in a base offense level of level 38. Ephedrine and hydriodic acid typically are used together in the same manufacturing process to manufacture methamphetamine. (B) Determining the Base Offense Level for Offenses involving Ephedrine. or Phenylpropanolamine. Example: The defendant was in possession of five kilograms of ephedrine and 300 grams of hydriodic acid. Cases Involving Multiple Chemicals. Exporting. or to manufacture one controlled substance by different manufacturing processes. the base offense level would be level 38. Example: The defendant was in possession of 80 grams of ephedrine and 50 grams of phenylpropanolamine.

§ 865. § 865. Additionally. In some cases. 42 U. § 6928(d).C.S. any costs of environmental cleanup and harm to persons or property should be considered by the court in determining the amount of restitution under §5E1.—Section 865 of title 21. requires the imposition of a mandatory consecutive term of imprisonment of not more than 15 years.S. or the Comprehensive Environmental Response.S. and Liability Act. United States Code. specifying the number of months to be served consecutively for the conviction under 21 U. treatment. an upward departure may be warranted. a sentence of 130 months for the underlying offense plus 21 months for the conduct covered by 21 U. and 960(d)(2). if the applicable adjusted guideline range is 151-188 months and the court determines a "total punishment" of 151 months is appropriate. 9603(b). For example. of a large number of persons to induce those persons to purchase a controlled substance.C. for purposes of subsection (b)(4) and this note. "mass-marketing by means of an interactive computer service" means the solicitation.1 (Restitution) and in fashioning appropriate conditions of supervision under §§5B1.C. has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U.C.C.S. and (d)(4) do not require that the defendant have knowledge or an actual belief that the listed chemical was to be used to manufacture a controlled substance unlawfully.§2D1. storage.3 (Conditions of Supervised Release).S. GUIDELINES MANUAL November 1. Compensation. For example. the court should determine the appropriate "total punishment" and. § 1319(c). a 3-level reduction is provided to reflect that the defendant is less culpable than one who possessed or distributed listed chemicals knowing or believing that they would be used to manufacture a controlled substance unlawfully. 7. § 230(f)(2)). pseudoephedrine.11 5.C.S. The amount of ephedrine – 182 – .C.—For purposes of subsection (b)(4).C. 33 U. List I chemicals are important to the manufacture of a controlled substance and usually become part of the final product. ephedrine reacts with other chemicals to form methamphetamine.3 (Relevant Conduct) involved any discharge. and pheylpropanolamine) and list II chemicals. § 865. "Interactive computer service". emission. subsection (b)(4) would apply to a defendant who operated a web site to promote the sale of Gamma-butyrolactone (GBL) but would not apply to coconspirators who use an interactive computer service only to communicate with one another in furtherance of the offense. 6. release. §§ 841(c)(2) and (f)(1). Application of Subsection (b)(4).3 (Conditions of Probation) and 5D1.C. Imposition of Consecutive Sentence for 21 U. the Federal Water Pollution Control Act. divide the sentence between the sentence attributable to the underlying drug offense and the sentence attributable to 21 U. transportation. 8. 42 U.S. (d)(3). In order to comply with the relevant statute. on the judgment form. § 865 would achieve the "total punishment" in a manner that satisfies the statutory requirement of a consecutive sentence. §§ 5124. In such cases. the enhancement under subsection (b)(3) may not adequately account for the seriousness of the environmental harm or other threat to public health or safety (including the health or safety of law enforcement and cleanup personnel).S. or disposal violation covered by the Resource Conservation and Recovery Act. 2009 Convictions under 21 U. Background: Offenses covered by this guideline involve list I chemicals (including ephedrine. by means of an interactive computer service. For example. In a case in which the defendant possessed or distributed the listed chemical without such knowledge or belief. Subsection (b)(3) applies if the conduct for which the defendant is accountable under §1B1.S.

storage. November 1. chemical. Transportation. increase by 2 levels. product. chemical. amendment 541). distributed any prohibited flask. product. amendment 611). 2005 (see Appendix C. Unlawful Possession. or a person for whose conduct the defendant is accountable under §1B1. believed. equipment. 2001 (see Appendix C. if the defendant had reasonable cause to believe the prohibited flask. §2D1. Historical Note: Effective November 1.November 1. 2000 (see Appendix C. amendment 625). apply – 183 – . if the defendant intended to manufacture a controlled substance or knew or believed the prohibited flask. (2) (3) (4) (c) Cross Reference (1) If the offense involved unlawfully manufacturing a controlled substance. or had reasonable cause to believe that prohibited flask. 2009 GUIDELINES MANUAL §2D1. or (B) knew. Product. If the offense involved (A) an unlawful discharge. Amended effective November 1. emission. 2001 (see Appendix C. amendments 605 and 606). List II chemicals are generally used as solvents. or Material. November 1. or material was to be used to manufacture a controlled substance. increase by 2 levels. Manufacture. or (B) the unlawful transportation. 1995 (see Appendix C. November 1. November 1. equipment. November 1. or disposal of a hazardous waste. 1997 (see Appendix C. or Importation of Prohibited Flask. amendment 679). 2007 (see Appendix C. If the defendant. equipment.3 (Relevant Conduct). May 1. May 1. amendment 557). amendments 667 and 668).12. or attempting to manufacture a controlled substance unlawfully.12 directly affects the amount of methamphetamine produced. 1992 (see Appendix C. increase by 6 levels. chemical. Distribution. 2004 (see Appendix C. equipment. amendment 371). increase by 2 levels. 1991 (see Appendix C. and reagents. Attempt or Conspiracy (a) Base Offense Level (Apply the greater): (1) 12. product. November 1. (2) (b) Specific Offense Characteristics (1) If the defendant (A) intended to manufacture methamphetamine. amendment 519). chemical. or material was to be used to manufacture a controlled substance. catalysts. or material through mass-marketing by means of an interactive computer service. or 9. 1997 (see Appendix C. amendments 705 and 707). If the offense involved stealing anhydrous ammonia or transporting stolen anhydrous ammonia. Equipment. Exportation. November 1. 2002 (see Appendix C. November 1. or material was to be used to manufacture methamphetamine. November 1. amendment 646). Chemical. amendment 447). product. treatment. 2003 (see Appendix C. or release into the environment of a hazardous or toxic substance. amendment 661).

exportation. "mass-marketing by means of an interactive computer service" means the solicitation. amendment 667). "Interactive computer service".3 (Conditions of Probation) and 5D1. 864. or disposal violation covered by the Resource Conservation and Recovery Act.C. of a large number of persons to induce those persons to purchase a controlled substance.1 (Unlawful Manufacturing.C.C. 1997 (see Appendix C. 1992 (see Appendix C. Amended effective November 1. any costs of environmental cleanup and harm to persons or property should be considered by the court in determining the amount of restitution under §5E1. 33 U. or Trafficking) if the resulting offense level is greater than that determined above. Subsection (b)(2) applies if the conduct for which the defendant is accountable under §1B1. and Liability Act. release. by means of an interactive computer service. amendment 447). the Federal Water Pollution Control Act. In such cases. treatment. an upward departure may be warranted.3 (Relevant Conduct). has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U.S. products. Importing. November 1. storage." as used in subsection (c)(1). amendment 520).1 (Restitution) and in fashioning appropriate conditions of supervision under §§5B1. Exporting. emission. the enhancement under subsection (b)(2) may not adequately account for the seriousness of the environmental harm or other threat to public health or safety (including the health or safety of law enforcement and cleanup personnel). or the Comprehensive Environmental Response. 2009 §2D1. 42 U. §§ 843(a)(6).S. equipment. § 1319(c). Commentary Statutory Provisions: 21 U. In some cases. § 6928(d). for purposes of subsection (b)(3) and this note. Application Notes: 1. or importation of prohibited flasks. an upward departure may be warranted.C. November 1. chemicals. transportation. (7). means that the defendant.S. 2000 (see Appendix C. 2001 (see Appendix C.S. §§ 5124. completed the actions sufficient to constitute the offense of unlawfully manufacturing a controlled substance or attempting to manufacture a controlled substance unlawfully. amendment 626). amendment 371).C.3 (Relevant Conduct) involved any discharge. November 1. 3.§2D1. § 230(f)(2)). or a person for whose conduct the defendant is accountable under §1B1. Compensation. Historical Note: Effective November 1. For example. distribution. or material. amendment 558).12 GUIDELINES MANUAL November 1. November 1. "Offense involved unlawfully manufacturing a controlled substance or attempting to manufacture a controlled substance unlawfully. – 184 – .—For purposes of subsection (b)(3). 1995 (see Appendix C. transportation. Additionally.3 (Conditions of Supervised Release). 4. 2. 42 U. 1991 (see Appendix C. November 1. If the offense involved the large-scale manufacture. subsection (b)(3) would apply to a defendant who operated a web site to promote the sale of prohibited flasks but would not apply to coconspirators who use an interactive computer service only to communicate with one another in furtherance of the offense. 9603(b). amendment 605). 2004 (see Appendix C.S. Application of Subsection (b)(3).

S. Historical Note: Effective November 1. or Possessing a Listed Chemical) if the defendant knew or believed that the chemical was to be used to manufacture a controlled substance unlawfully. Amended effective November 1. amendment 371). – 185 – .11 (Unlawfully Distributing. "The offense level from §2D1.C. November 1.11" includes the base offense level and any applicable specific offense characteristic or cross reference. or The offense level from §2D1. otherwise. 2002 (see Appendix C. or Trafficking (Including Possession with Intent to Commit These Offenses). Exporting or Possessing a Listed Chemical) reduced by 3 levels if the defendant had reason to believe that the chemical was to be used to manufacture a controlled substance unlawfully. Importing. Presenting False or Fraudulent Identification to Obtain a Listed Chemical.November 1. (f)(1). amendment 646).1(a)(3)(A). increase by 6 levels. 1991 (see Appendix C.11 (Unlawfully Distributing. Structuring Chemical Transactions or Creating a Chemical Mixture to Evade Reporting or Recordkeeping Requirements.5 (Interpretation of References to Other Offense Guidelines).1 (Unlawful Manufacturing. (2) (3) Commentary Statutory Provisions: 21 U. 1992 (see Appendix C. Attempt or Conspiracy) applicable to the underlying offense. Exporting.14 §2D1. §2D1. and (b)(11) shall not apply. §§ 841(c)(3). (b) Specific Offense Characteristic (1) If §3A1.14.13. 843(a)(4)(B). amendment 447). or 6. see §1B1. Exporting. Attempt or Conspiracy (a) Base Offense Level (Apply the greatest): (1) The offense level from §2D1. (a)(8). Importing. except that §2D1.4 (Terrorism) does not apply. Importing. (a)(3)(B). Narco-Terrorism (a) Base Offense Level: (1) The offense level from §2D1. 2009 GUIDELINES MANUAL §2D1. Application Note: 1.

see Appendix A (Statutory Index).14 GUIDELINES MANUAL November 1. LSD. Importing. or 4. § 844(a). amendment 700). Historical Note: Effective November 1.C. Unlawful Possession. flunitrazepam. or PCP. Attempt or Conspiracy (a) Base Offense Level: (1) 8.S. or Trafficking) as if the defendant had been convicted of possession of that mixture or substance with intent to distribute. or 6. if the substance is heroin or any Schedule I or II opiate. The typical case addressed by this guideline involves possession of a controlled substance by the defendant for the defendant’s own consumption. For additional statutory provision(s). Background: Mandatory (statutory) minimum penalties for several categories of cases. 2009 Commentary Statutory Provision: 21 U.S. Exporting. 2007 (see Appendix C. apply §2D1. correctional facility.C. or cocaine base. (2) Commentary Statutory Provision: 21 U. § 960a.§2D1.1. ranging from – 186 – . (2) (3) (b) Cross References (1) If the defendant is convicted of possession of more than 5 grams of a mixture or substance containing cocaine base. * * * * * 2.2 (Providing or Possessing Contraband in Prison). If the offense involved possession of a controlled substance in a prison. Where the circumstances establish intended consumption by a person other than the defendant. an upward departure may be warranted. apply §2P1. Application Note: 1. if the substance is any other controlled substance or a list I chemical. UNLAWFUL POSSESSION §2D2.1 (Unlawful Manufacturing. an analogue of these. or detention facility. if the substance is cocaine.

possession of more than one gram of a mixture or substance containing cocaine base) are to be sentenced in accordance with §5G1. Other cases for which enhanced penalties are provided under Section 6371 of the Anti-Drug Abuse Act of 1988 (e. the mandatory minimum becomes the guideline sentence. otherwise.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases). apply Chapter Three. for a person with two or more prior convictions. or Subterfuge. 1997 (see Appendix C. Fraud. if death resulted. amendment 447). Special Instruction: (1) If the defendant is convicted of a single count involving the death or serious bodily injury of more than one person.C. Operating or Directing the Operation of a Common Carrier Under the Influence of Alcohol or Drugs (a) Base Offense Level (Apply the greatest): (1) (2) (3) (b) 26. 1992 (see Appendix C. possession of more than three grams of a mixture or substance containing cocaine base.1(b). 1989 (see Appendix C.. Note. amendment 304). When a mandatory minimum penalty exceeds the guideline range.3 fifteen days’ to five years’ imprisonment. §2D2. 1992 (see Appendix C. November 1. or 21. or 13. Part – 187 – . Amended effective January 15. are set forth in 21 U.November 1. 1987. that 18 U.1 for possession of more than five grams of a mixture or substance containing cocaine base. amendments 556 and 558). 2009 GUIDELINES MANUAL §2D2.S. § 843(a)(3). November 1. amendment 447).S. 1987. 1988 (see Appendix C. an offense subject to an enhanced penalty under Section 6371 of the Anti-Drug Abuse Act of 1988. November 1. amendment 509). 1990 (see Appendix C. amendment 321). September 23. if serious bodily injury resulted. See §5G1. Deception. See §5C1.1(b). Acquiring a Controlled Substance by Forgery. Attempt or Conspiracy (a) Base Offense Level: 8 Commentary Statutory Provision: 21 U.3. §2D2. § 3553(f) provides an exception to the applicability of mandatory minimum sentences in certain cases. Historical Note: Effective November 1.S. November 1.C. Amended effective November 1. amendment 514).2.g. Section 2D2. November 1.1(b)(1) provides a cross reference to §2D1. 1994 (see Appendix C.C. however. 1995 (see Appendix C. for a person with one prior conviction. amendment 24). Historical Note: Effective November 1. § 844(a).

2009 (see Appendix C. such that the resulting offense level under subsection (b) would not adequately reflect the seriousness of the offense. amendment 534). 1988 (see Appendix C. November 1.S.C. see Appendix A (Statutory Index). November 1. The offense levels assume that the offense involved the operation of a common carrier carrying a number of passengers. Attempt or Conspiracy (a) Base Offense Level: 4 – 188 – . If the offense resulted in the death or serious bodily injury of a large number of persons. November 1. e.3 GUIDELINES MANUAL November 1. a downward departure may be warranted. 1991 (see Appendix C. §§ 842(a)(1). Offenses covered by this guideline may vary widely with regard to harm and risk of harm. Background: This section implements the direction to the Commission in Section 6482 of the AntiDrug Abuse Act of 1988. Historical Note: Effective November 1. amendment 141). an upward departure may be warranted. Regulatory Offenses Involving Registration Numbers. 1987. amendment 447). 843(a)(1). § 342. §2D3. If no or only a few passengers were placed at risk. Amended effective January 15.. Regulatory Offenses Involving Controlled Substances or Listed Chemicals.g.C. For additional statutory provision(s). 2009 D (Multiple Counts) as if the defendant had been convicted of a separate count for each such victim. 1989 (see Appendix C. * * * * * 3.2. Attempt or Conspiracy (a) Base Offense Level: 6 Commentary Statutory Provisions: 21 U. amendment 421). amendment 25). November 1. 1987. 1992 (see Appendix C.S. Commentary Statutory Provision: 18 U. Unlawful Advertising Relating to Scheduled Substances. Historical Note: Effective November 1. 1995 (see Appendix C. a bus.§2D2. (2). amendment 727).1. REGULATORY VIOLATIONS §2D3. Amended effective November 1.

4. 1987. amendment 447). amendment 359) and November 1. 1991 (see Appendix C. 1993 (see Appendix C. 954. 961. effective November 1. 1993 (see Appendix C. November 1. 1990 (see Appendix C. amendment 447). [Deleted] Historical Note: Section 2D3. 1992 (see Appendix C. amendment 481). see Appendix A (Statutory Index). Amended effective November 1. was deleted by consolidation with §2D3. 1987.3 (Illegal Use of Registration Number to Distribute or Dispense a Controlled Substance to Another Registrant or Authorized Person. 1987. – 189 – . 1995 (see Appendix C.S. amended effective November 1. 1992 (see Appendix C. was deleted by consolidation with §2D3. 1992 (see Appendix C.2 effective November 1. §§ 842(a)(2).5.3. 1993 (see Appendix C. amendment 421).C. was deleted by consolidation with §2D3. Attempt or Conspiracy). amendment 447). amended effective November 1. 1991 (see Appendix C. [Deleted] Historical Note: Section 2D3. effective November 1. §2D3. amendment 481). amendment 481).November 1. §2D3. For additional statutory provision(s).5 (Violation of Recordkeeping or Reporting Requirements for Listed Chemicals and Certain Machines. amendment 481). amendment 371). §2D3. November 1. amendment 421) and November 1. 2009 GUIDELINES MANUAL §2D3. 1993 (see Appendix C. 1992 (see Appendix C. effective November 1. November 1. Historical Note: Effective November 1.5 Commentary Statutory Provisions: 21 U. amendment 534). (b). (10). 1991 (see Appendix C.2 effective November 1.4 (Illegal Transfer or Transshipment of a Controlled Substance.2 effective November 1. amendment 447). (9). Attempt or Conspiracy). amended effective November 1. [Deleted] Historical Note: Section 2D3. Attempt or Conspiracy).

Historical Note: Effective November 1.§2E1. The offense level usually will be determined by the offense level of the underlying conduct. Commentary Statutory Provisions: 18 U. or the offense level applicable to the underlying racketeering activity.2(a)(1) and not as part of the instant offense. 1987. If the offense level for the underlying racketeering activity is less than the alternative minimum level specified (i. – 190 – . 2009 PART E .S. This treatment is designed to produce a result consistent with the distinction between 2. and D to both (a)(1) and (a)(2). Application Notes: 1. To determine whether subsection (a)(1) or (a)(2) results in the greater offense level. Certain conduct may be charged in the count of conviction as part of a "pattern of racketeering activity" even though the defendant has previously been sentenced for that conduct. Unlawful Conduct Relating to Racketeer Influenced and Corrupt Organizations (a) Base Offense Level (Apply the greater): (1) (2) 19. this subpart covers a wide variety of criminal conduct.OFFENSES INVOLVING CRIMINAL ENTERPRISES AND RACKETEERING 1. 3. §2E1.1 GUIDELINES MANUAL November 1. treat as a prior sentence under §4A1.. apply Chapter Three.e. C. Where there is more than one underlying offense. If the underlying conduct violates state law. 1963. §§ 1962. 19). treat each underlying offense as if contained in a separate count of conviction for the purposes of subsection (a)(2). B. the alternative minimum base offense level is to be used.1. Parts A. Use whichever subsection results in the greater offense level. RACKETEERING Introductory Commentary Because of the jurisdictional nature of the offenses included. 4. the offense level corresponding to the most analogous federal offense is to be used. Where such previously imposed sentence resulted from a conviction prior to the last overt act of the instant offense.C.

Where there is more than one underlying offense. and D to both (a)(1) and (a)(2). a guideline departure may be warranted. November 1.. To determine whether subsection (a)(1) or (a)(2) results in the greater offense level. apply Chapter Three. 1987. § 1952. 1989 (see Appendix C. C. Parts A. Historical Note: Effective November 1. If the underlying conduct violates state law. or the offense level applicable to the underlying crime of violence or other unlawful activity in respect to which the travel or transportation was undertaken. Use whichever subsection results in the greater offense level. 1988 (see Appendix C. Commentary Statutory Provision: 18 U. amendment 26).C. 1988 (see Appendix C. amendment 142). Amended effective June 15. If the offense level for the underlying conduct is less than the alternative minimum base offense level specified (i. – 191 – . 2.2. treat each underlying offense as if contained in a separate count of conviction for the purposes of subsection (a)(2). §2E1.November 1. §2E1.e. 3. B.3. 2009 GUIDELINES MANUAL §2E1. 1987. If this treatment produces an anomalous result in a particular case. the alternative minimum base offense level is to be used.S. amendment 27). Amended effective June 15. the offense level corresponding to the most analogous federal offense is to be used. 6). Application Notes: 1.3 the instant offense and criminal history found throughout the guidelines. Violent Crimes in Aid of Racketeering Activity (a) Base Offense Level (Apply the greater): (1) (2) 12. Historical Note: Effective November 1. or the offense level applicable to the underlying crime or racketeering activity. Interstate or Foreign Travel or Transportation in Aid of a Racketeering Enterprise (a) Base Offense Level (Apply the greater): (1) (2) 6.

Application Notes: 1. – 192 – .5.C. was deleted by consolidation with §§2B3. effective November 1. 1990 (see Appendix C. 2009 Commentary Statutory Provision: 18 U.1 effective November 1. Background: This guideline and the statute to which it applies do not require that a murder actually have been committed. §2E1.S.C. 12). If the underlying conduct violates state law.4. amendment 145). If the underlying conduct violates state law. the offense level corresponding to the most analogous federal offense is to be used.2. 1989 (see Appendix C. 2B3. amendment 311). Application Note: 1.S. Historical Note: Effective November 1. amendment 144). § 1952A). the alternative minimum base offense level is to be used. 1987. [Deleted] Historical Note: Section 2E1. and 2C1. the offense level corresponding to the most analogous federal offense is to be used.1.S.S. Commentary Statutory Provision: 18 U.§2E1. 1989 (see Appendix C. amendment 449). 1989 (see Appendix C. 1992 (see Appendix C.. November 1. 1987. If the offense level for the underlying conduct is less than the alternative minimum base offense level specified (i. amendment 481). amended effective November 1. The maximum term of imprisonment authorized by statute ranges from three years to life imprisonment. § 1952B). Amended effective November 1. 1993 (see Appendix C. November 1.C. or the offense level applicable to the underlying unlawful conduct. § 1959 (formerly 18 U. §2E1.5 (Hobbs Act Extortion or Robbery). amendment 143). Background: The conduct covered under this section ranges from threats to murder. § 1958 (formerly 18 U.3. Use of Interstate Commerce Facilities in the Commission of Murder-For-Hire (a) Base Offense Level (Apply the greater): (1) (2) 32. 2B3. Historical Note: Effective November 1.C.3 GUIDELINES MANUAL November 1. Amended effective November 1. 2. 1987.e.

1 * * * * * 2. increase by 3 levels. increase by 4 levels. or if a dangerous weapon (including a firearm) was brandished or possessed. or If the degree of injury is between that specified in subdivisions (B) and (C). increase the offense level according to the seriousness of the injury: Degree of Bodily Injury (A) (B) (C) (D) Increase in Level add 2 add 4 add 6 Bodily Injury Serious Bodily Injury Permanent or Life-Threatening Bodily Injury If the degree of injury is between that specified in subdivisions (A) and (B). (B) – 193 – .1. increase by 2 levels. add 3 levels. that the combined increase from (1) and (2) shall not exceed 9 levels. Collecting an Extension of Credit by Extortionate Means (a) (b) Base Offense Level: 20 Specific Offense Characteristics (1) (A) (B) If a firearm was discharged increase by 5 levels. or if a dangerous weapon (including a firearm) was otherwise used. (E) Provided. however. increase by 4 levels. (3) (A) If any person was abducted to facilitate commission of the offense or to facilitate escape. add 5 levels. 2009 GUIDELINES MANUAL §2E2. or if any person was physically restrained to facilitate commission of the offense or to facilitate escape. (C) (2) If any victim sustained bodily injury. EXTORTIONATE EXTENSION OF CREDIT §2E2.November 1. Making or Financing an Extortionate Extension of Credit.

1987. Amended effective November 1. 2. §§ 892-894. – 194 – . See also Commentary to §2B3. Part B (Role in the Offense) are particularly relevant in providing a measure of the scope of the offense and the defendant’s participation.C. 1993 (see Appendix C. In addition. 1989 (see Appendix C. amendment 601).S." "permanent or life-threatening bodily injury.1 (c) Cross Reference (1) GUIDELINES MANUAL November 1. November 1. apply §2A1. or the collection of loans by extortionate means. These "loan-sharking" offenses typically involve threats of violence and provide economic support for organized crime. The base offense level for these offenses is higher than the offense level for extortion because loan sharking is in most cases a continuing activity.C.2 (Extortion by Force or Threat of Injury or Serious Damage) regarding the interpretation of the specific offense characteristics. 2000 (see Appendix C. amendment 479).S. GAMBLING Introductory Commentary This subpart covers a variety of proscribed conduct. Application Notes: 1. 1987. The adjustments in Chapter Three. * * * * * 3.2 (Extortion by Force or Threat of Injury or Serious Damage).1 (First Degree Murder)." "dangerous weapon. Commentary Statutory Provisions: 18 U." "otherwise used. November 1." "brandished. 2009 If a victim was killed under circumstances that would constitute murder under 18 U. amendments 146-148). Definitions of "firearm. Background: This section refers to offenses involving the making or financing of extortionate extensions of credit.1 (Application Instructions). 1991 (see Appendix C. Other enhancements parallel those in §2B3.§2E2. the guideline does not include the amount of money involved because the amount of money in such cases is often difficult to determine. amendment 398)." and "physically restrained" are found in the Commentary to §1B1. Historical Note: Effective November 1. November 1. Historical Note: Effective November 1." "abducted." "bodily injury." "serious bodily injury. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States.

Gambling Offenses. amendment 721). §2E3.1 effective November 1. § 2156(g). otherwise. see Appendix A (Statutory Index). for example. 1987. or (C) committed as part of.C. 15 U. if the offense was (A) engaging in a gambling business. 2008 (see Appendix C.3 §2E3.C. 2. (2) (3) Commentary Statutory Provisions: 7 U.S. was deleted by consolidation with §2E3. 2009 GUIDELINES MANUAL §2E3. § 2156. amendment 481). effective November 1.S. 1511.1.2 (Transmission of Wagering Information). 31 U. Animal Fighting Offenses (a) Base Offense Level: (Apply the greatest) (1) 12. 1301-1304. * * * * * – 195 – . § 5363. 1955. §§ 1172-1175. if the offense involved an animal fighting venture. §2E3.C. 1987. or 10. 1953. amendment 703). Application Notes: 1. Amended effective November 1.November 1.3. §§ 1082.C. or to facilitate. or 6. 18 U. effective November 1. November 1.1 effective November 1.—For purposes of this guideline: "Animal fighting venture" has the meaning given that term in 7 U. 1993 (see Appendix C. an upward departure may be warranted.3 (Other Gambling Offenses). 1987. Upward Departure Provision. 2007 (see Appendix C.—If the offense involved extraordinary cruelty to an animal that resulted in. For additional statutory provision(s).S. was deleted by consolidation with §2E3. amendment 481).S. Historical Note: Effective November 1. 1993 (see Appendix C.2. November 1.C. a commercial gambling operation. [Deleted] Historical Note: Section 2E3.S. 1306. maiming or death to an animal. 1993 (see Appendix C. (B) transmission of wagering information. [Deleted] Historical Note: Section 2E3. amendment 481). Definition.

members of labor organizations under the Labor-Management Reporting and Disclosure Act of 1959. theft.C. At least 10. The base offense levels for many of the offenses in this subpart have been determined by reference to analogous sections of the guidelines. 1987. Amended effective November 1. or the offense level from the table in §2T4. LABOR RACKETEERING Introductory Commentary The statutes included in this subpart protect the rights of employees under the Taft-Hartley Act. and fraud in this subpart generally correspond to similar conduct under other parts of the guidelines. Historical Note: Effective November 1. "Tax evaded" refers to state and local excise taxes. GUIDELINES MANUAL November 1. 2007 (see Appendix C. Background: The conduct covered by this section generally involves evasion of state and local excise taxes. * * * * * 5. amendment 700). The base offense levels for bribery and graft have been set higher than the level for commercial – 196 – .1. 2344(a). amendment 724). Thus. 2008 (see Appendix C.1 4. November 1. Application Note: 1. the base offense levels for bribery. it is graded by use of the tax table in §2T4. Commentary Statutory Provisions: 18 U. §2E4. Unlawful Conduct Relating to Contraband Cigarettes and Smokeless Tobacco (a) Base Offense Level (Apply the greater): (1) (2) 9. 2009 TRAFFICKING IN CONTRABAND CIGARETTES AND SMOKELESS TOBACCO Historical Note: Effective November 1. and participants of employee pension and welfare benefit plans covered under the Employee Retirement Income Security Act.1 (Tax Table) corresponding to the amount of the tax evaded. Because this offense is basically a tax matter.000 cigarettes must be involved. 1987. amendment 700).§2E4. 2007 (see Appendix C.S. §§ 2342(a).1. Amended effective November 1.

or 6. Offering. or Labor Organizations (a) Base Offense Level: (1) (2) (b) 10.4 (Base Fine).1 (Theft. §2E5. (B) if a bribe. increase by the number of levels from the table in §2B1. if a gratuity. Application Notes: 1.November 1.000 but did not exceed $5. If the value of the prohibited payment or the value of the improper benefit to the payer. Specific Offense Characteristics (1) If the defendant was a fiduciary of the benefit plan or labor organization. use the greatest of: (A) the value of the unlawful payment.1. or Soliciting a Bribe or Gratuity Affecting the Operation of an Employee Welfare or Pension Benefit Plan. Property Destruction. increase by 1 level. and Fraud) corresponding to that amount. 2009 GUIDELINES MANUAL §2E5. § 1954. Commentary Statutory Provisions: 18 U.1 bribery due to the particular vulnerability to exploitation of the organizations covered by this subpart.C. Representatives. or (B) exceeded $5. (2) (c) Special Instruction for Fines . the consequential damages resulting from the unlawful payment. Historical Note: Effective November 1. § 186. Prohibited Payments or Lending of Money by Employer or Agent to Employees. 1987.C. Accepting.Organizations (1) In lieu of the pecuniary loss under subsection (a)(3) of §8C2. "Bribe" refers to the offer or acceptance of an unlawful payment with the specific understanding that it will corruptly affect an official action of the recipient.S. if a bribe. whichever is greater (A) exceeded $2.S. increase by 2 levels. 29 U. – 197 – .000.000. the value of the benefit received or to be received in return for the unlawful payment. or (C) if a bribe.

3. 1989 (see Appendix C. or has any authority or responsibility to do so. False Statements and Concealment of Facts in Relation to Documents Required by the Employee Retirement Income Security Act. § 1002(21)(A) to mean a person who exercises any discretionary authority or control in respect to the management of such plan or exercises authority or control in respect to management or disposition of its assets.2. (B) an offense involving a bribe or a gratuity. amendment 150). Soliciting. November 1. amended effective June 15.1 (Offering. or an embezzlement. a fraud. 2004 (see Appendix C.S. Fraud Involving the Deprivation of the Intangible Right to Honest Services of Public Officials. Historical Note: Effective November 1.2 (Theft or Embezzlement from Employee Pension and Welfare Benefit Plans). Background: This section covers the giving or receipt of bribes and other unlawful gratuities involving employee welfare or pension benefit plans. amendment 399). or Soliciting a Bribe or Gratuity Affecting the Operation of – 198 – . 1991 (see Appendix C. The seriousness of the offense is determined by several factors. or who renders investment advice for a fee or other direct or indirect compensation with respect to any moneys or other property of such plan. amendment 617). amendment 666). and November 1.1 (Offering.1(b)(1) applies. and Fraud). 4. "Value of the improper benefit to the payer" is explained in the Commentary to §2C1. November 1. GUIDELINES MANUAL November 1. amendment 481). Failure to Maintain and Falsification of Records Required by the Labor Management Reporting and Disclosure Act. or If the offense was committed to facilitate or conceal (A) an offense involving a theft. November 1. 1991 (see Appendix C. amendment 149). If the adjustment for a fiduciary at §2E5. including the value of the bribe or gratuity and the magnitude of the loss resulting from the transaction. 1993 (see Appendix C. §2E5. Accepting. "Fiduciary of the benefit plan" is defined in 29 U.1 (Theft. amendment 28). amendment 422).1 effective November 1.§2E5. or who has any discretionary authority or responsibility in the administration of such plan. effective November 1. 5. [Deleted] Historical Note: Section 2E5. Amended effective November 1.3. 1993 (see Appendix C. November 1. Destruction and Failure to Maintain Corporate Audit Records (a) Base Offense Level (Apply the greater): (1) (2) 6. or (C) an obstruction of justice offense. amendment 481). Property Destruction. Conspiracy to Defraud by Interference with Governmental Functions).1 2. was deleted by consolidation with §2B1. or Receiving a Bribe. apply §2B1. §2E5. Extortion Under Color of Official Right.C. 2001 (see Appendix C. §2E5. November 1. or labor organizations. 1988 (see Appendix C. Giving. 1989 (see Appendix C. 2009 "Gratuity" refers to the offer or acceptance of an unlawful payment other than a bribe. 1987.3 (Abuse of Position of Trust or Use of Special Skill). do not apply the adjustment at §3B1. 1987.

or Labor Organizations). Appendix C. or §2J1.1 effective November 1. was deleted by consolidation with §2E5.5. 1989 (see Appendix C.November 1. January 25. the offense level is determined by reference to the offense facilitated by the false statements or documents.2 (Obstruction of Justice). amendment 152). 1520. §2E5. [Deleted] Historical Note: Section 2E5. Where a violation under this section occurs in connection with another offense. amendment 29) and November 1.S. §§ 439. 1987. Commentary Statutory Provisions: 18 U. amended effective June 15.3 effective November 1. effective November 1.1 effective November 1. [Deleted] Historical Note: Section 2E5. 1987. 2009 GUIDELINES MANUAL §2E5. Prohibited Payments or Lending of Money by Employer or Agent to Employees. amendment 481). For additional statutory provision(s). Amended effective November 1. – 199 – . amendment 481).C. 1991 (see Appendix C. §2E5. §§ 1027. 29 U. 2003 (see Appendix C. amendment 151). amended effective November 1.6 (Prohibited Payments or Lending of Money by Employer or Agent to Employees. was deleted by consolidation with §2E5. 1989 (see Appendix C.C. 1993 (see Appendix C. 461. [Deleted] Historical Note: Section 2E5. 1987. 1131. 1993 (see Appendix C. amendment 481).4 (Embezzlement or Theft from Labor Unions in the Private Sector). Historical Note: Effective November 1. effective November 1. Representatives. effective November 1.S. amendment 653). 1987. 1988 (see Appendix C. Such violations sometimes occur in connection with the criminal conversion of plan funds or schemes involving bribery or graft.6. amendment 422). as applicable. see Appendix A (Statutory Index). November 1. amendment 153). amended effective November 1. It also covers failure to maintain proper documents required by the LMRDA or falsification of such documents. 1993 (see Appendix C.5 (Failure to Maintain and Falsification of Records Required by the Labor Management Reporting and Disclosure Act).6 an Employee Welfare or Pension Benefit Plan. 1989 (see Appendix C. was deleted by consolidation with §2B1. or Labor Organizations). amendment 647). Background: This section covers the falsification of documents or records relating to a benefit plan covered by ERISA. amendment 481). §2E5. 1993 (see Appendix C. 2003 (see.4. Representatives. November 1.

Offenses Involving Fraud or Deceit. 1987. amendment 617). 1991 (see Appendix C. §2F1. November 1. November 1. effective November 1. was deleted by consolidation with §2B1. 1995 (see Appendix C. November 1.1 GUIDELINES MANUAL November 1.2.[DELETED] Historical Note: The heading to Part F . 1990 (see Appendix C. 1987. 1989 (see Appendix C.1 (Fraud and Deceit. 2000 (see Appendix C. 1993 (see Appendix C. amendments 481 and 482). November 1.1 and 2F1. 1997 (see Appendix C.2 (Insider Trading). and 597). amendments 154-156 and 303). 1992 (see Appendix C. November 1. amendment 30). effective November 1. amendment 513). November 1. 2001 (see Appendix C. 1987. [Deleted] Historical Note: Section 2F1. §2F1. amendment 617). – 200 – . 1998 (see Appendix C. Forgery. 1988 (see Appendix C. Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States). November 1. amendment 617). amendment 551). amendments 577 and 587). amendments 595. amendment 317).§2F1. amendments 364 and 393). 2001 (see Appendix C. [Deleted] Historical Note: Section 2F1.1. amended effective June 15. November 1. amendment 470).1 effective November 1. 2009 PART F . 596. was deleted by consolidation with §2B1.1 effective November 1. effective November 1.2 effective November 1. November 1. was deleted due to the deletion of §§2F1. 2001 (see Appendix C.

November 1. 1.OFFENSES INVOLVING COMMERCIAL SEX ACTS. or 14.C. apply §2A3. (c) Cross Reference (1) If the offense involved conduct described in 18 U. 2422(a) (only if the offense involved a victim other than a minor). Attempt to Commit Criminal Sexual Abuse). amendment 641).S.1 PART G .1 (Criminal Sexual Abuse. AND OBSCENITY Historical Note: Effective November 1. 2421 (only if the offense involved a victim other than a minor).S. 2009 GUIDELINES MANUAL §2G1. Specific Offense Characteristic (1) If (A) subsection (a)(2) applies.C.S. Amended effective November 1. Part D (Multiple Counts) shall be applied as if the promoting of a commercial sex act or prohibited sexual conduct in respect to each victim had been contained in a separate count of conviction.C. 2000 (see Appendix C. otherwise.S.1. and (B) the offense involved fraud or coercion. Chapter Three. amendment 592). if the offense of conviction is 18 U. Promoting a Commercial Sex Act or Prohibited Sexual Conduct with an Individual Other than a Minor (a) Base Offense Level: (1) (2) (b) 34. § 2242. (d) Special Instruction (1) If the offense involved more than one victim. § 1591(b)(1). PROMOTING A COMMERCIAL SEX ACT OR PROHIBITED SEXUAL CONDUCT Historical Note: Effective November 1. §2G1. §§ 1591 (only if the offense involved a victim other than a minor). 1987. Amended effective November 1. 1987. § 2241(a) or (b) or 18 U.C. increase by 4 levels. 18 U. 2002 (see Appendix C. Commentary Statutory Provisions: 8 U. – 201 – .S. amendment 641). November 1. § 1328 (only if the offense involved a victim other than a minor). SEXUAL EXPLOITATION OF MINORS. 2002 (see Appendix C.C.

§ 2242 is: (i) engaging in.C. intoxicant. as defined in this guideline. Application of Chapter Three Adjustment. Attempt to Commit Criminal Sexual Abuse). or coerced to engage in.C. or travel for the purpose of engaging in.1 (Aggravating Role).—For purposes of subsection (c)(1). or without the knowledge or permission of the victim. This characteristic generally will not apply if the drug or alcohol was voluntarily taken.C. If bodily injury results.—For purposes of subsection (c)(1).S. a commercial sex act. for example. "Victim" means a person transported. § 2242. § 2241(a) or (b) is engaging in.S. 2009 Definitions.—Subsection (b)(1) provides an enhancement for fraud or coercion that occurs as part of the offense and anticipates no bodily injury. a drug. or to travel to engage in. 4. a victim. (B) – 202 – .§2G1. This enhancement would apply. serious bodily injury. For purposes of subsection (b)(1). or other similar substance and thereby substantially impairing the ability of the victim to appraise or control conduct. GUIDELINES MANUAL November 1.S. if any dangerous weapon was used or brandished.—For the purposes of §3B1. enticing.— (A) Conduct Described in 18 U. a commercial sex act or prohibited sexual conduct. or causing another person to engage in. § 2241(a) or (b). "Prohibited sexual conduct" has the meaning given that term in Application Note 1 of §2A3. This provision would apply. or (iv) administering by force or threat of force. in a case in which the ability of the victim to appraise or control conduct was substantially impaired by drugs or alcohol.C. or kidnapping.S. Conduct Described in 18 U. or causing another person to engage in.1 (Criminal Sexual Abuse. Part K (Departures). § 1591(e)(3).C. for example. "victim" may include an undercover law enforcement officer. Application of Subsection (b)(1). persuaded. or coercing a person to engage in a commercial sex act. See Chapter Five. whether or not the person consented to the commercial sex act or prohibited sexual conduct.S. an upward departure may be warranted. (ii) threatening or placing the victim in fear that any person will be subject to death. a sexual act with another person by: (i) using force against the victim. enticed.—For purposes of this guideline: "Commercial sex act" has the meaning given that term in 18 U.1 Application Notes: 1. conduct described in 18 U. conduct described in 18 U. Application of Subsection (c)(1). Accordingly. "coercion" includes any form of conduct that negates the voluntariness of the victim. 2. or in a case in which the ability of the victim to appraise or control conduct was substantially impaired by drugs or alcohol. "Promoting a commercial sex act" means persuading. a sexual act with another person by threatening or placing the victim in fear (other 3. (iii) rendering the victim unconscious. inducing. induced. is considered a participant only if that victim assisted in the promoting of a commercial sex act or prohibited sexual conduct in respect to another victim.

November 1. an upward departure may be warranted. 2009 GUIDELINES MANUAL §2G1. November 1. each person transported. was deleted by consolidation with §2G1.2 (Transportation of a Minor for the Purpose of Prostitution or Prohibited Sexual Conduct). 2004 (see Appendix C. November 1. §2G1. November 1. or coerced to engage in. if the defendant was convicted under 18 U. the sexual act. 1996 (see Appendix C.2. amendment 627).November 1.C. (4) – 203 – . serious bodily injury. November 1. multiple counts involving more than one victim are not to be grouped together under §3D1. 2009 (see Appendix C. whether specifically cited in the count of conviction.S. Amended effective November 1. November 1.3 than by threatening or placing the victim in fear that any person will be subject to death. Sex Trafficking of Children. 1996 (see Appendix C. Travel to Engage in Commercial Sex Act or Prohibited Sexual Conduct with a Minor. Part D (Multiple Counts).C. or kidnapping). effective November 1. persuaded. November 1. 28. 2002 (see Appendix C. November 1. if the defendant was convicted under 18 U. amendment 400).1 effective November 1. amendment 322). or 24. amendment 737). 1990 (see Appendix C. § 1591(b)(2). 1987. 2001 (see Appendix C. Promoting a Commercial Sex Act or Prohibited Sexual Conduct with a Minor. amendment 592). amended effective November 1. 1989 (see Appendix C. or causing another person to engage in. 2000 (see Appendix C. Special Instruction at Subsection (d)(1). 1990 (see Appendix C. or travel to engage in. a sexual act with a victim who is incapable of appraising the nature of the conduct or who is physically incapable of declining participation in. In addition. or (ii) engaging in. amendment 612). 2007 (see Appendix C. amendment 323). November 1.S. 2001 (see Appendix C. and November 1. 30. subsection (d)(1) directs that if the relevant conduct of an offense of conviction includes the promoting of a commercial sex act or prohibited sexual conduct in respect to more than one victim. amendment 701). § 1591(b)(1). [Deleted] Historical Note: Section 2G1. § 2422(b) or § 2423(a). induced. amendment 538). each such victim shall be treated as if contained in a separate count of conviction. §2G1. Upward Departure Provision.2 (Groups of Closely Related Counts). 6.C. 1989 (see Appendix C. November 1. amendments 159 and 160). otherwise. Consequently. a commercial sex act or prohibited sexual conduct is to be treated as a separate victim. amendment 538).3. 1992 (see Appendix C.—If the offense involved more than ten victims. Use of Interstate Facilities to Transport Information about a Minor (a) Base Offense Level: (1) (2) (3) 34. amendment 664). 1987. Transportation of Minors to Engage in a Commercial Sex Act or Prohibited Sexual Conduct. Historical Note: Effective November 1. amendment 641). or communicating unwillingness to engage in. amendments 157 and 158). May 1. 5. 1991 (see Appendix C.—For the purposes of Chapter Three. if the defendant was convicted under 18 U. amendment 444).S. enticed.

or (B) entice. increase by 2 levels. or (B) the minor was otherwise in the custody. Attempt to Commit Criminal Sexual Abuse). § 2241 or § 2242.1 (First Degree Murder).C. If (A) the offense involved the knowing misrepresentation of a participant’s identity to persuade. encourage. Custodian Permitting Minor to Engage in Sexually Explicit Conduct. if the resulting offense level is greater than that determined above. transporting. entice. increase by 2 levels. apply §2A3. 2009 Specific Offense Characteristics (1) If (A) the defendant was a parent. or supervisory control of the defendant. apply §2A1. the minor to engage in prohibited sexual conduct. or legal guardian of the minor. If the offense involved the use of a computer or an interactive computer service to (A) persuade. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States. a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct. and (B) the offense involved a minor who had not attained the age of 12 years. (2) (3) (4) (5) (c) Cross References (1) If the offense involved causing.S. or (B) subsection (a)(3) or (a)(4) applies and the offense involved a commercial sex act. or offering or seeking by notice or advertisement.1 (Criminal Sexual Abuse. increase by 8 levels.C. offer.1 (Sexually Exploiting a Minor by Production of Sexually Explicit Visual or Printed Material. permitting.S. or knowingly engaging in a sexual act with a minor who had not (2) (3) – 204 – . apply §2G2. or facilitate the travel of. If (A) the offense involved the commission of a sex act or sexual contact. If the offense involved conduct described in 18 U. coerce. coerce. induce. or facilitate the travel of. or solicit a person to engage in prohibited sexual conduct with the minor. if the resulting offense level is greater than that determined above. If the offense involved interstate travel with intent to engage in a sexual act with a minor who had not attained the age of 12 years. If a minor was killed under circumstances that would constitute murder under 18 U. entice. care.§2G1. or (B) a participant otherwise unduly influenced a minor to engage in prohibited sexual conduct. increase by 2 levels.3 (b) GUIDELINES MANUAL November 1. a minor to engage in prohibited sexual conduct. induce. Advertisement for Minors to Engage in Production). If (A) subsection (a)(3) or (a)(4) applies. if the resulting offense level is greater than that determined above. increase by 2 levels. relative.

"Computer" has the meaning given that term in 18 U. enticement. § 2246(2). § 2423(f). § 1030(e)(1). and (ii) could be provided for the purposes of engaging in sexually explicit conduct. "Sexual contact" has the meaning given that term in 18 U.C. or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years.1 shall apply. 2422 (only if the offense involved a minor). §§ 1591 (only if the offense involved a minor).3 attained the age of 12 years.—For purposes of this guideline: "Commercial sex act" has the meaning given that term in 18 U.S. § 230(f)(2)).S. § 2246(3). "Interactive computer service" has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U.C. § 1328 (only if the offense involved a minor). 2425. Part D (Multiple Counts) shall be applied as if the persuasion. (d) Special Instruction (1) If the offense involved more than one minor.1 (Aggravating Role). Commentary Statutory Provisions: 8 U.C.S.S. who a law enforcement officer represented to a participant (i) had not attained the age of 18 years. 2009 GUIDELINES MANUAL §2G1. "Prohibited sexual conduct" has the meaning given that term in Application Note 1 of the Commentary to §2A3. (B) an individual. whether fictitious or not. regardless of the "consent" of the minor.S. 2421 (only if the offense involved a minor). Application Notes: 1.S.1 (Criminal Sexual Abuse.C.November 1.C. 18 U. "Illicit sexual conduct" has the meaning given that term in 18 U. "Participant" has the meaning given that term in Application Note 1 of the Commentary to §3B1. Attempt to Commit Criminal Sexual Abuse). § 1591(e)(3). "Minor" means (A) an individual who had not attained the age of 18 years.C.S. 2423. – 205 – . Chapter Three. travel. or transportation to engage in a commercial sex act or prohibited sexual conduct of each victim had been contained in a separate count of conviction.C. "Sexual act" has the meaning given that term in 18 U.C. §2A3. coercion. Definitions.S.

or status. a minor to engage in prohibited sexual conduct. whether temporarily or permanently. teachers. occupation. For example. Inapplicability of Chapter Three Adjustment. there shall be a rebuttable presumption that subsection (b)(2)(B) applies. Application of Subsection (b)(3).—The enhancement in subsection (b)(2)(A) applies in cases involving the misrepresentation of a participant’s identity to persuade. or Supervisory Control. 2009 Application of Subsection (b)(1). In determining whether to apply this enhancement. induce. baby-sitters. day care providers. In a case in which a participant is at least 10 years older than the minor. Accordingly. care. induce. coerce.— (A) Custody. The misrepresentation to which the enhancement in subsection (b)(2)(A) may apply includes misrepresentation of a participant’s name. some degree of undue influence can be presumed because of the substantial difference in age between the participant and the minor. In such a case. or other temporary caretakers are among those who would be subject to this enhancement.§2G1. Care. GUIDELINES MANUAL November 1.— (A) Misrepresentation of Participant’s Identity. as long as the misrepresentation was made with the intent to persuade. coerce. or supervisory control of the minor. The voluntariness of the minor’s behavior may be compromised without prohibited sexual conduct occurring. 4.3 2. entice. subsection (b)(2)(B) does not apply in a case in which the only "minor" (as defined in Application Note 1) involved in the offense is an undercover law enforcement officer. entice. age. without such intent.—Subsection (b)(3) is intended to apply only to the use of a computer or an interactive computer service to communicate directly with a minor or with a – 206 – . Subsection (b)(2)(A) is intended to apply only to misrepresentations made directly to a minor or to a person who exercises custody. would not be a sufficient basis for application of the enhancement. However. Accordingly. Application of Subsection (b)(2). (B) 3. the enhancement in subsection (b)(2)(A) would not apply to a misrepresentation made by a participant to an airline representative in the course of making travel arrangements for the minor. (B) Undue Influence. the court should look to the actual relationship that existed between the defendant and the minor and not simply to the legal status of the defendant-minor relationship.3 (Abuse of Position of Trust or Use of Special Skill). gender. or facilitate the travel of.—In determining whether subsection (b)(2)(B) applies. a minor to engage in prohibited sexual conduct. the court should closely consider the facts of the case to determine whether a participant’s influence over the minor compromised the voluntariness of the minor’s behavior.—If the enhancement under subsection (b)(1) applies. or facilitate the travel of. use of a computer screen name. do not apply §3B1.—Subsection (b)(1) is intended to have broad application and includes offenses involving a victim less than 18 years of age entrusted to the defendant.

or causing another person to engage in.S. Accordingly.S. for example.C. or (III) knowingly engaging in a sexual act under the circumstances described in 18 U.— (A) Application of Subsection (c)(1).C. Conduct described in 18 U. or without the knowledge or permission of the minor. conduct described in 18 U.S. § 2256(2).C. a sexual act with another person by threatening or placing the minor in fear (other than by threatening or placing the minor in fear that any person will be subject to death. or kidnapping. Accordingly. or causing another person to engage in. or communicating unwillingness to engage in. a minor to engage in sexually explicit conduct for the purpose of producing any visual depiction of such conduct. using. the enhancement in subsection (b)(3) would not apply to the use of a computer or an interactive computer service to obtain airline tickets for the minor from an airline’s Internet site. coercing. a sexual act with another person: (I) using force against the minor. if any dangerous weapon was used or brandished. permitting. (b). or causing another person to engage in. Conduct described in 18 U. § 2242 is: (I) engaging in. § 2241(c) is: (I) interstate travel with intent to engage in a sexual act with a minor who has not attained the age of 12 years. for purposes of subsection (c)(3): (i) Conduct described in 18 U. a sexual act with a minor who is incapable of appraising the nature of the conduct or who is physically incapable of declining participation in. (II) threatening or placing the minor in fear that any person will be subject to death. or supervisory control of the minor.C. the sexual act. intoxicant. or in a case in which the ability of the minor to appraise or control conduct was substantially impaired by drugs or alcohol.—For purposes of subsection (c)(3).S. For purposes of subsection (c)(1).3 person who exercises custody. persuading. § 2241(a) and (b) with a minor who has attained the age of 12 years but has not attained the age of 16 years (and is at least 4 years younger than the person so engaging). enticing. § 2241(a). serious bodily injury. transporting. inducing.C. or (II) engaging in. (III) rendering the minor unconscious.—The cross reference in subsection (c)(1) is to be construed broadly and includes all instances in which the offense involved employing. § 2241 means conduct described in 18 U.November 1.S. or kidnapping). serious bodily injury. or offering or seeking by notice. or (IV) administering by force or threat of force. care. or (c). § 2241(a) or (b) is engaging in.C. Application of Subsection (c)(3).S.S. 2009 GUIDELINES MANUAL §2G1. or other similar substance and thereby substantially impairing the ability of the minor to appraise or control conduct. a drug. Application of Subsection (c). (B) (ii) (iii) – 207 – . advertisement or other method.C. 5. "sexually explicit conduct" has the meaning given that term in 18 U. (II) knowingly engaging in a sexual act with a minor who has not attained the age of 12 years. This provision would apply.

SEXUAL EXPLOITATION OF A MINOR §2G2. § 2241(a) or (b). increase by 4 levels. Sexually Exploiting a Minor by Production of Sexually Explicit Visual or Printed Material. each such minor shall be treated as if contained in a separate count of conviction.—If the offense involved more than ten minors. or (i) the commission of a sexual act. enticed.3 6. increase by 4 levels. 2004 (see Appendix C. increase by 2 levels. Amended effective November 1.—For the purposes of Chapter Three. or travel to engage in. Consequently. an upward departure may be warranted. subsection (d)(1) directs that if the relevant conduct of an offense of conviction includes travel or transportation to engage in a commercial sex act or prohibited sexual conduct in respect to more than one minor. or legal guardian of the minor (5) – 208 – . whether specifically cited in the count of conviction. a commercial sex act or prohibited sexual conduct is to be treated as a separate minor. or (B) attained the age of twelve years but not attained the age of sixteen years. increase by 2 levels. Upward Departure Provision. amendments 732 and 737). Part D (Multiple Counts). Historical Note: Effective November 1.§2G1. and (ii) conduct described in 18 U. November 1. GUIDELINES MANUAL November 1. In addition. relative. multiple counts involving more than one minor are not to be grouped together under §3D1. 2007 (see Appendix C.1. increase by 4 levels. persuaded. each minor transported. amendment 664). 2009 (see Appendix C. Custodian Permitting Minor to Engage in Sexually Explicit Conduct. * * * * * 2. amendment 701). If the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence. (Apply the greater) If the offense involved— (A) the commission of a sexual act or sexual contact. If the defendant was a parent. 7. induced. (2) (B) (3) (4) If the offense involved distribution. increase by 2 levels. or coerced to engage in. 2009 Application of Subsection (d)(1). Advertisement for Minors to Engage in Production (a) (b) Base Offense Level: 32 Specific Offense Characteristics (1) If the offense involved a minor who had (A) not attained the age of twelve years.2 (Groups of Closely Related Counts).C.S.

2260(a). § 1030(e)(1). § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States. coerce.November 1. "Distribution" means any act. Application Notes: 1. induce. coerce. or supervisory control of the defendant.C. Part D (Multiple Counts) shall be applied as if the exploitation of each minor had been contained in a separate count of conviction.S. and transportation. 2009 GUIDELINES MANUAL §2G2. § 2256. entice. – 209 – . or if the minor was otherwise in the custody. Accordingly. as defined in 18 U. care. transmission. increase by 2 levels. (c) Cross Reference (1) If the victim was killed in circumstances that would constitute murder under 18 U. distribution includes posting material involving the sexual exploitation of a minor on a website for public viewing but does not include the mere solicitation of such material by a defendant. advertisement. production.C.S.1 involved in the offense.1 (First Degree Murder).S. Chapter Three. or to otherwise solicit participation by a minor in such conduct. §§ 1591. § 230(f)(2)). Commentary Statutory Provisions: 18 U. (d) Special Instruction (1) If the offense involved the exploitation of more than one minor. "Material" includes a visual depiction. a minor to engage in sexually explicit conduct. or facilitate the travel of. apply §2A1.—For purposes of this guideline: "Computer" has the meaning given that term in 18 U.S. induce. or facilitate the travel of. a minor to engage sexually explicit conduct.S. or (ii) solicit participation with a minor in sexually explicit conduct. "Interactive computer service" has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U. for the purpose of producing sexually explicit material or for the purpose of transmitting such material live. related to the transfer of material involving the sexual exploitation of a minor.C. including possession with intent to distribute. 2251(a)-(c). 2251(d)(1)(B). Definitions. if the resulting offense level is greater than that determined above. (6) If.C.C. increase by 2 levels. entice. or (B) the use of a computer or an interactive computer service to (i) persuade. the offense involved (A) the knowing misrepresentation of a participant’s identity to persuade.

2009 "Minor" means (A) an individual who had not attained the age of 18 years. Application of Subsection (b)(6). whether fictitious or not. for example. a drug. Application of Subsection (b)(2). entice. "Sexually explicit conduct" has the meaning given that term in 18 U. Accordingly. the enhancement in subsection (b)(6)(A) would not apply to a misrepresentation made by a participant to an airline representative in the course of making travel arrangements for the minor.C. coerce. (B) an individual. In determining whether to apply this adjustment. "Sexual contact" has the meaning given that term in 18 U. or without the knowledge or permission of the minor. or kidnapping.S. who a law enforcement officer represented to a participant (i) had not attained the age of 18 years. (ii) threatening or placing the minor in fear that any person will be subject to death.— (A) In General. and (ii) could be provided for the purposes of engaging in sexually explicit conduct.1 GUIDELINES MANUAL November 1. 2. 3.C. or supervisory control of the minor.—The enhancement in subsection (b)(6)(A) applies in cases involving the misrepresentation of a participant’s identity to persuade. Inapplicability of Chapter Three Adjustment. or other similar substance and thereby substantially impairing the ability of the minor to appraise or control conduct. Application of Subsection (b)(5). whether temporarily or permanently.— (A) Misrepresentation of Participant’s Identity. For example. or in a case in which the ability of the minor to appraise or control conduct was substantially impaired by drugs or alcohol. a minor to engage in sexually explicit conduct for the purpose of producing sexually explicit material or for the purpose of transmitting such material live.C. if any dangerous weapon was used or brandished. – 210 – . or facilitate the travel of. § 2241(a) or (b)" is: (i) using force against the minor. § 2246(2). serious bodily injury. "Sexual act" has the meaning given that term in 18 U.S.—For purposes of subsection (b)(2): "Conduct described in 18 U. or (iv) administering by force or threat of force.S.§2G2. This provision would apply. (iii) rendering the minor unconscious. or other temporary caretakers are among those who would be subject to this enhancement. teachers. § 2246(3). day care providers. § 2256(2).3 (Abuse of Position of Trust or Use of Special Skill). (B) 4. Subsection (b)(6)(A) is intended to apply only to misrepresentations made directly to a minor or to a person who exercises custody. intoxicant. or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years.S.C.—If the enhancement in subsection (b)(5) applies. do not apply §3B1. care.—Subsection (b)(5) is intended to have broad application and includes offenses involving a minor entrusted to the defendant. the court should look to the actual relationship that existed between the defendant and the minor and not simply to the legal status of the defendant-minor relationship. baby-sitters. induce.

whether specifically cited in the count of conviction or not. or Advertising Material Involving the Sexual Exploitation of a Minor.November 1. or supervisory control of the minor. 1989 (see Appendix C. November 1. Subsection (b)(6)(B) is intended to apply only to the use of a computer or an interactive computer service to communicate directly with a minor or with a person who exercises custody. Possessing Material Involving the Sexual Exploitation of a Minor with Intent to Traffic. care. each minor exploited is to be treated as a separate minor. as long as the misrepresentation was made with the intent to persuade. multiple counts involving the exploitation of different minors are not to be grouped together under §3D1. amendment 537). Shipping.—Subsection (b)(6)(B) provides an enhancement if the offense involved the use of a computer or an interactive computer service to persuade. the enhancement would not apply to the use of a computer or an interactive computer service to obtain airline tickets for the minor from an airline’s Internet site. occupation. Historical Note: Effective November 1. amendment 664). 736. November 1. November 1. amendments 733. November 1. coerce. § 2252A(a)(5). – 211 – . Transporting. induce. November 1. a minor to engage in sexually explicit conduct for the purpose of producing sexually explicit material or for the purpose of transmitting such material live. would not be a sufficient basis for application of the enhancement. November 1. 2003 (see Appendix C. without such intent. coerce. Trafficking in Material Involving the Sexual Exploitation of a Minor. Application of Subsection (d)(1). 2001 (see Appendix C. § 1466A(b). gender. 5. amendment 324). entice. amendment 400). amendment 661). 1997 (see Appendix C. induce. 2001 (see Appendix C. Accordingly.2 The misrepresentation to which the enhancement in subsection (b)(6)(A) may apply includes misrepresentation of a participant’s name. amendment 612). or facilitate the travel of. November 1.C. 1987. amendment 575). §2G2. if the defendant is convicted of 18 U. November 1. entice. 2000 (see Appendix C. Possessing Material Involving the Sexual Exploitation of a Minor (a) Base Offense Level: (1) 18. May 1.2 (Groups of Closely Related Counts). (B) Use of a Computer or an Interactive Computer Service.S.—An upward departure may be warranted if the offense involved more than 10 minors. 1996 (see Appendix C. Subsection (d)(1) directs that if the relevant conduct of an offense of conviction includes more than one minor being exploited. amendment 161). amendment 592). Receiving.2. 2009 (see Appendix C. age. use of a computer screen name. 1990 (see Appendix C. 2009 GUIDELINES MANUAL §2G2. Upward Departure Provision. each such minor shall be treated as if contained in a separate count of conviction. Soliciting. November 1. or status. 1991 (see Appendix C. and 737). amendment 627). a minor to engage in sexually explicit conduct for the purpose of producing sexually explicit material or for the purpose of transmitting such material live or otherwise to solicit participation by a minor in such conduct for such purposes. Accordingly. or § 2252A(a)(7). Consequently.—For the purposes of Chapter Three. § 2252(a)(4). 2004 (see Appendix C. Amended effective November 1. Part D (Multiple Counts). 6. or facilitate the travel of.

otherwise. coerce. If the material involved a prepubescent minor or a minor who had not attained the age of 12 years. Property Destruction. Distribution other than distribution described in subdivisions (A) through (E). (Apply the greatest) If the offense involved: (A) Distribution for pecuniary gain. but by not less than 5 levels. (2) (3) (B) (C) (D) (E) (F) (4) If the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence. or for accessing with intent to view the material. Distribution to a minor that was intended to persuade. entice. other than illegal activity covered under subdivision (E).1 (Theft. and (C) the defendant did not intend to traffic in. or coerce the minor to engage in any illegal activity. If the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor. and Fraud) corresponding to the retail value of the material. (B) the defendant’s conduct was limited to the receipt or solicitation of material involving the sexual exploitation of a minor. Distribution to a minor that was intended to persuade. or expectation of receipt. 2009 22. If the offense involved the use of a computer or an interactive computer service for the possession. or distribution of the material. increase by 2 levels. induce. If the offense involved— (5) (6) (7) – 212 – . transmission. increase by 6 levels. such material. increase by 5 levels. increase by 4 levels.2 (2) (b) GUIDELINES MANUAL November 1. entice. Distribution for the receipt. increase by 5 levels. of a thing of value. but not for pecuniary gain. receipt. induce.§2G2. Distribution to a minor. or distribute. increase by 2 levels. or facilitate the travel of. increase by 7 levels. increase by 5 levels. Specific Offense Characteristics (1) If (A) subsection (a)(2) applies. increase by the number of levels from the table in §2B1. the minor to engage in prohibited sexual conduct. increase by 2 levels. decrease by 2 levels.

For example. Custodian Permitting Minor to Engage in Sexually Explicit Conduct. advertisement. "Distribution for pecuniary gain" means distribution for profit.2 (A) (B) (C) (D) (c) at least 10 images. apply §2G2. "Thing of value" means anything of valuable consideration. or offering or seeking by notice or advertisement. §§ 1466A. and transportation. including bartering or other in-kind transaction. distribution includes posting material involving the sexual exploitation of a minor on a website for public viewing but does not include the mere solicitation of such material by a defendant. related to the transfer of material involving the sexual exploitation of a minor. increase by 4 levels. the "thing of value" is the child pornographic material received in exchange for other child pornographic material bartered in consideration for the material received. transporting. transmission. Accordingly. and 600 or more images. "Distribution" means any act. 2252A(a)-(b).C. increase by 3 levels. at least 150 images.S. "Distribution to a minor" means the knowing distribution to an individual who is a minor at the time of the offense. Commentary Statutory Provisions: 18 U. permitting.1 (Sexually Exploiting a Minor by Production of Sexually Explicit Visual or Printed Material.S. but fewer than 600. – 213 – . Cross Reference (1) If the offense involved causing. or expectation of receipt. increase by 5 levels. 2252. in a case involving the bartering of child pornographic material. Advertisement for Minors to Engage in Production).November 1. but fewer than 150. increase by 2 levels. Application Notes: 1.—For purposes of this guideline: "Computer" has the meaning given that term in 18 U. including possession with intent to distribute. a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct. of a thing of value. if the resulting offense level is greater than that determined above. but not for pecuniary gain" means any transaction. but not for profit. 2009 GUIDELINES MANUAL §2G2. § 1030(e)(1). production. that is conducted for a thing of value.C. but fewer than 300. "Distribution for the receipt. Definitions. 2260(b). at least 300 images.

whether or not the abuse or exploitation (A) occurred during the course of the offense. § 2422. § 2243. (B) an offense under state law.—For purposes of determining the number of images under subsection (b)(7): (i) Each photograph. Application of Subsection (b)(5). as defined in 18 U.§2G2. Application of Subsection (b)(4).C.— (A) Definition of "Images". § 2251A.—A conviction taken into account under subsection (b)(5) is not excluded from consideration of whether that conviction receives criminal history points pursuant to Chapter Four. § 2421.S. "Sexual abuse or exploitation" does not include possession. or (C) an attempt or conspiracy to commit any of the offenses under subdivisions (A) or (B). or distribute such materials. or (C) resulted in a conviction for such conduct.S. picture. Determining the Number of Images.C. that constitutes child pornography. § 2242. regardless of whether the defendant specifically intended to possess. that would have been an offense under any such section if the offense had occurred within the special maritime or territorial jurisdiction of the United States. § 2256.—"Images" means any visual depiction.S. "Pattern of activity involving the sexual abuse or exploitation of a minor" means any combination of two or more separate instances of the sexual abuse or sexual exploitation of a minor by the defendant.1 (Criminal Sexual Abuse. "Prohibited sexual conduct" has the meaning given that term in Application Note 1 of the Commentary to §2A3.2 GUIDELINES MANUAL November 1. § 2251(d)(1)(B). as defined in 18 U. receipt. 2. accessing with intent to view.C. receive. § 2256(8). Attempt to Commit Criminal Sexual Abuse). 2009 "Interactive computer service" has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U. § 2241. (B) involved the same minor. "Material" includes a visual depiction. who a law enforcement officer represented to a participant (i) had not attained the age of 18 years.C. or trafficking in material relating to the sexual abuse or exploitation of a minor. (B) an individual. § 2251(a)-(c).S. or § 2423. "Minor" means (A) an individual who had not attained the age of 18 years.—Subsection (b)(4) applies if the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence. or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years. "Sexual abuse or exploitation" means any of the following: (A) conduct described in 18 U. Part A (Criminal History). If the number of 3. computer or computer-generated image. or any similar visual depiction shall be considered to be one image. as defined in 18 U. and (ii) could be provided for the purposes of engaging in sexually explicit conduct. § 2256(5).S.C. Application of Subsection (b)(7). whether fictitious or not. 4. (B) – 214 – . access with intent to view. § 2260(b). § 230(f)(2)).

2003 (see Appendix C. If the length of the visual depiction is substantially more than 5 minutes. enticing. 1990 (see Appendix C.C. 1997 (see Appendix C.—If the defendant engaged in the sexual abuse or exploitation of a minor at any time (whether or not such abuse or exploitation occurred during the course of the offense or resulted in a conviction for such conduct) and subsection (b)(5) does not apply. (ii) Each video. movie. an upward departure may be warranted.—The cross reference in subsection (c)(1) is to be construed broadly and includes all instances where the offense involved employing. transporting. Historical Note: Effective November 1. 2003 (see Appendix C.—"Sexually explicit conduct" has the meaning given that term in 18 U. (B) 6. Selling or Buying of Children for Use in the Production of Pornography (a) Base Offense Level: 38 Commentary – 215 – . amendment 664). the term "material involving the sexual exploitation of a minor" includes such material. Cases Involving Adapted or Modified Depictions. In addition.S. a minor to engage in sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting live any visual depiction of such conduct. a case in which the defendant is convicted under 18 U. 7.November 1. 2003. November 1. coercing. § 2256(2). Amended effective June 15. amendments 733 and 736).S. 2009 GUIDELINES MANUAL §2G2. 2000 (see Appendix C. Application of Subsection (c)(1). 2009 (see Appendix C. video-clip. or similar visual depiction shall be considered to have 75 images. amendment 31).3. amendment 592). § 2252A(a)(7)). amendment 617). 1987. permitting. Definition. persuading. Upward Departure Provision. 1991 (see Appendix C. amendment 537). November 1. using. 1996 (see Appendix C.— (A) In General. November 1. effective April 30. Background: Section 401(i)(1)(C) of Public Law 108–21 directly amended subsection (b) to add subdivision (7). amendment 325). November 1. amendment 435). 2001 (see Appendix C.C. April 30. 1991 (see Appendix C. inducing..3 images substantially underrepresents the number of minors depicted. amendment 575). amendment 372). §2G2.—If the offense involved material that is an adapted or modified depiction of an identifiable minor (e. November 27. amendment 661). an upward departure may be warranted. November 1. amendment 649). November 1. an upward departure may be warranted. 2004 (see Appendix C.g. November 1. November 1. 5. an upward departure may be warranted if the defendant received an enhancement under subsection (b)(5) but that enhancement does not adequately reflect the seriousness of the sexual abuse or exploitation involved. or offering or seeking by notice or advertisement. 1988 (see Appendix C. November 1.

5. 2009 Statutory Provision: 18 U. amendment 372). Background: The statutory minimum sentence for a defendant convicted under 18 U.C. Recordkeeping Offenses Involving the Production of Sexually Explicit Materials. transporting. November 1. amendment 592). – 216 – . 1991 (see Appendix C. a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct.§2G2. Transporting. 18 U. amendment 537). §2G2. amendment 372). § 2251A is thirty years imprisonment. § 2251A. 2006 (see Appendix C. permitting.1 (Sexually Exploiting a Minor by Production of Sexually Explicit Visual or Printed Material. Amended effective November 1. amendment 436). amendment 162). or Possessing Material Involving the Sexual Exploitation of a Minor with Intent to Traffic). November 1. Amended effective November 1. 2004 (see Appendix C. 2257A. Advertisement for Minors to Engage in Production). Historical Note: Effective November 1.2 (Trafficking in Material Involving the Sexual Exploitation of a Minor.3 GUIDELINES MANUAL November 1. amendment 649). If the offense reflected an effort to conceal a substantive offense that involved trafficking in material involving the sexual exploitation of a minor (including receiving.4. Custodian Permitting Minor to Engage in Sexually Explicit Conduct. amendment 701).C. §§ 2257.C. Historical Note: Effective November 1. Amended effective November 27. (2) Commentary Statutory Provisions: 15 U.C. November 1.S.S. amendment 664). apply §2G2. amendment 689). 1989 (see Appendix C. Advertising. §2G2. 1996 (see Appendix C. or possessing material involving the sexual exploitation of a minor with intent to traffic). apply §2G2.S. [Deleted] Historical Note: Effective November 1. 2003 (see Appendix C. Receiving. transporting. Failure to Provide Required Marks in Commercial Electronic Email (a) (b) Base Offense Level: 6 Cross References (1) If the offense reflected an effort to conceal a substantive offense that involved causing. § 7704(d).S. 1991 (see Appendix C. or offering or seeking by notice or advertisement.2 effective November 1. 2000 (see Appendix C. April 30. 1991 (see Appendix C. was deleted by consolidation with §2G2. amendment 736). 2009 (see Appendix C. 2007 (see Appendix C. advertising.

—Subsection (b)(2) is intended to have broad application and includes offenses involving a victim less than 18 years of age entrusted to the defendant. who a law enforcement officer represented to a participant (i) had not attained the age of 18 years. Application Notes: 1. or (B) a minor victim was otherwise in the custody.6 §2G2.C.C. or other temporary caretakers are among those who would be subject to this enhancement. day care providers. "Minor" means (A) an individual who had not attained the age of 18 years. or supervisory control of the defendant. or Supervisory Control. care.S. or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years. Application of Subsection (b)(2). If the offense involved conduct described in 18 U. increase by 2 levels. increase by 2 levels. Child Exploitation Enterprises (a) (b) Base Offense Level: 35 Specific Offense Characteristics (1) If a victim (A) had not attained the age of 12 years. § 1030(e)(1). or (B) had attained the age of 12 years but had not attained the age of 16 years.November 1. teachers. and (ii) could be provided for the purposes of engaging in sexually explicit conduct.— (A) Custody. "Interactive computer service" has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U.S.—For purposes of this guideline: "Computer" has the meaning given that term in 18 U. increase by 2 levels. increase by 4 levels. 2.6. whether temporarily or permanently.C.C. § 2241(a) or (b).S. whether fictitious or not. § 2252A(g). 2009 GUIDELINES MANUAL §2G2. Definitions. Care. increase by 2 levels. (B) an individual. the – 217 – . baby-sitters. (2) (3) (4) Commentary Statutory Provision: 18 U. § 230(f)(2)). If a computer or an interactive computer service was used in furtherance of the offense. or legal guardian of a minor victim. For example. relative. If (A) the defendant was a parent.S. In determining whether to apply this enhancement.

for example.S. and Fraud) corresponding to the retail value of the material. § 2241(a) or (b)" is: (i) using force against the minor. other (B) (C) (D) – 218 – . Mailing.—For purposes of subsection (b)(3).C. 2007 (see Appendix C. of a thing of value. or coerce the minor to engage in any illegal activity. 3. (B) Inapplicability of Chapter Three Adjustment.—If the enhancement under subsection (b)(2) applies. Property Destruction.1.§2G2. increase by 5 levels. (iii) rendering the minor unconscious. Distribution for the receipt. "conduct described in 18 U. Importing. increase by the number of levels from the table in §2B1. Transferring Obscene Matter to a Minor. or other similar substance and thereby substantially impairing the ability of the minor to appraise or control conduct. This provision would apply. do not apply §3B1. Distribution to a minor that was intended to persuade.3 (Abuse of Position of Trust or Use of Special Skill). * * * * * 3. intoxicant. entice. induce. serious bodily injury.6 GUIDELINES MANUAL November 1. increase by 5 levels. or Transporting Obscene Matter. but by not less than 5 levels. if any dangerous weapon was used or brandished. Application of Subsection (b)(3). amendment 701). 2009 court should look to the actual relationship that existed between the defendant and the minor and not simply to the legal status of the defendant-minor relationship. (ii) threatening or placing the minor in fear that any person will be subject to death. or (iv) administering by force or threat of force. a drug. or in a case in which the ability of the minor to appraise or control conduct was substantially impaired by drugs or alcohol. but not for pecuniary gain. OBSCENITY §2G3. or kidnapping. or without the knowledge or permission of the minor. Misleading Domain Names (a) (b) Base Offense Level: 10 Specific Offense Characteristics (1) (Apply the Greatest) If the offense involved: (A) Distribution for pecuniary gain. or expectation of receipt. Historical Note: Effective November 1.1 (Theft. Distribution to a minor.

increase by 7 levels. Accordingly. the minor to engage in prohibited sexual conduct. or facilitate the travel of. increase by 4 levels.1 than illegal activity covered under subdivision (E). Possessing Material Involving the Sexual Exploitation of a Minor with Intent to Traffic. entice. Distribution other than distribution described in subdivisions (A) through (E). the offense involved the use of (A) a misleading domain name on the Internet. induce. 1466. increase by 6 levels. distribution includes posting material involving the sexual exploitation of a minor on a website for public viewing but does not include the mere solicitation of such material by a defendant. coerce. or (B) embedded words or digital images in the source code of a website. Commentary Statutory Provisions: 18 U. or advertising to receive material involving the sexual exploitation of a minor.S. related to the transfer of obscene matter. and transportation. possessing.November 1. receiving. (F) (2) If. If the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence. Application Notes: 1. (E) Distribution to a minor that was intended to persuade. § 1030(e)(1). or Advertising Material Involving the Sexual Exploitation of a Minor. Soliciting.2 (Trafficking in Material Involving the Sexual Exploitation of a Minor.C. Receiving.C. 1470. with the intent to deceive a minor into viewing material that is harmful to minors. Shipping. distributing.—For purposes of this guideline: "Computer" has the meaning given that term in 18 U. Possessing Material Involving the Sexual Exploitation of a Minor). 1465. increase by 2 levels. – 219 – . §§ 1460-1463. 2009 GUIDELINES MANUAL §2G3. "Distribution" means any act.S. see Appendix A (Statutory Index). 2252B. Transporting. For additional statutory provision(s). advertisement. apply §2G2. increase by 2 levels. (3) (4) (c) Cross Reference (1) If the offense involved transporting. Definitions. production. 2252C. If the offense involved the use of a computer or an interactive computer service. increase by 2 levels. including possession with intent to distribute.

amendment 664). 2004 (see Appendix C. "Thing of value" means anything of valuable consideration. Historical Note: Effective November 1. "Material that is harmful to minors" has the meaning given that term in 18 U. Application of Subsection (b)(4). 1991 (see Appendix C.C. amendment 372). "Minor" means (A) an individual who had not attained the age of 18 years. § 2256(2). November 1. § 230(f)(2)).§2G3. or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years.S. – 220 – . amendment 701).C. "Distribution for the receipt.—Subsection (b)(4) applies if the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence. "Distribution to a minor" means the knowing distribution to an individual who is a minor at the time of the offense. whether fictitious or not. "Prohibited sexual conduct" has the meaning given that term in Application Note 1 of the Commentary to §2A3.S. or expectation of receipt. or distribute such materials. who a law enforcement officer represented to a participant (i) had not attained the age of 18 years. 1989 (see Appendix C. 2009 "Distribution for pecuniary gain" means distribution for profit. but not for profit. 1991 (see Appendix C. § 2252B or § 2252C. subsection (b)(3) shall not apply. Amended effective November 1.—If the defendant is convicted of 18 U. 2001 (see Appendix C. Background: Most federal prosecutions for offenses covered in this guideline are directed to offenses involving distribution for pecuniary gain. and (ii) could be provided for the purposes of engaging in sexually explicit conduct. November 1. November 1. 1990 (see Appendix C. "Interactive computer service" has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U. November 27. (B) an individual. Attempt to Commit Criminal Sexual Abuse). 2007 (see Appendix C. amendment 437). receive. but not for pecuniary gain" means any transaction. 3.1 (Criminal Sexual Abuse. 2. Consequently. § 2252B(d). November 1. amendment 163). amendment 617). amendment 736).S.C. Inapplicability of Subsection (b)(3). 1987. amendment 326). that is conducted for a thing of value. "Sexually explicit conduct" has the meaning given that term in 18 U.C. regardless of whether the defendant specifically intended to possess. of a thing of value.1 GUIDELINES MANUAL November 1. amendment 592). November 1. including bartering or other in-kind transaction. 2000 (see Appendix C.S. the offense level under this section generally will be at least 15. November 1. November 1. 2009 (see Appendix C.

amendment 164). amendment 164). §§ 1464. 1987. or Transporting Obscene Matter.2 (Obscene or Indecent Telephone Communications).C. Historical Note: Effective November 1.1 (Importing.2 §2G3. 47 U. Subsection (b)(2) provides an enhancement for large-scale "dial-a-porn" or obscene broadcasting operations that results in an offense level comparable to the offense level for such operations under §2G3. amendment 592). increase to that offense level. – 221 – . increase by 4 levels.C. 1989 (see Appendix C. Mailing. 1989 (see Appendix C. (2) Commentary Statutory Provisions: 18 U. was deleted effective November 1. or if a broadcast was made between six o’clock in the morning and eleven o’clock at night. Broadcasting Obscene Material (a) (b) Base Offense Level: 12 Specific Offense Characteristics (1) If a person who received the telephonic communication was less than eighteen years of age. effective November 1. A former §2G3. 2009 GUIDELINES MANUAL §2G3. Background: Subsection (b)(1) provides an enhancement where an obscene telephonic communication was received by a minor less than 18 years of age or where a broadcast was made during a time when such minors were likely to receive it. Amended effective November 1. November 1. 1468. and Fraud) corresponding to the volume of commerce attributable to the defendant is greater than the offense level determined above.S.S. Obscene Telephone Communications for a Commercial Purpose.2. Transferring Obscene Matter to a Minor). Property Destruction. 2001 (see Appendix C. 2000 (see Appendix C. If 6 plus the offense level from the table in §2B1.November 1. § 223(b)(1)(A).1 (Theft. amendment 617). The extent to which the obscene material was distributed is approximated by the volume of commerce attributable to the defendant.

the base offense level. 247. § 3631. (2) (3) (4) (b) Specific Offense Characteristic (1) If (A) the defendant was a public official at the time of the offense.e. 242. 12.C.. effective November 1. or 6. See Application Note 4 of §1B1. if the offense involved (A) the use or threat of force against a person.1 GUIDELINES MANUAL November 1. 2009 PART H . use the following comparative procedure to determine the applicable base offense level: (i) determine the underlying offenses encompassed within the count of conviction as if the defendant had been charged with a conspiracy to commit multiple offenses. amendment 521). 10. or (B) the offense was committed under color of law. state. Commentary Statutory Provisions: 18 U.§2H1. 246.. and (iii) compare each of the Chapter Two offense levels determined above with the alternative base offense level under subsection – 222 – . Part H.2 (Applicable Guidelines).S. Application Notes: 1. §2H1. cross references. conduct set forth in the count of conviction may constitute more than one underlying offense (e. Subpart 1). Offenses Involving Individual Rights (a) Base Offense Level (Apply the Greatest): (1) the offense level from the offense guideline applicable to any underlying offense. two instances of assault.g. increase by 6 levels. In certain cases. 245(b).OFFENSES INVOLVING INDIVIDUAL RIGHTS 1. 248. or (B) property damage or the threat of property damage. 42 U. Subpart 1. 1987. or local law (other than an offense that is itself covered under Chapter Two. and special instructions) for each such underlying offense. if the offense involved two or more participants. 1995 (see Appendix C. specific offense characteristics. otherwise. 1091. §§ 241. In such cases. "Offense guideline applicable to any underlying offense" means the offense guideline applicable to any conduct established by the offense of conviction that constitutes an offense under federal. CIVIL RIGHTS Historical Note: Introductory Commentary to Part H.C. was deleted effective November 1.1. or one instance of assault and one instance of arson). (ii) determine the Chapter Two offense level (i.S.

The burning or defacement of a religious symbol with an intent to intimidate shall be deemed to involve the threat of force against a person for the purposes of subsection (a)(3)(A). amendment 166). national origin. – 223 – . amendment 327). 1995 (see Appendix C. Otherwise. [Deleted] Historical Note: Section 2H1. the court at sentencing determines beyond a reasonable doubt that the defendant intentionally selected any victim or any property as the object of the offense because of the actual or perceived race. 2000 (see Appendix C. November 1. §2H1. gender. ethnicity. amended effective November 1. 1989 (see Appendix C. 1987. color. "Participant" is defined in the Commentary to §3B1. 5. religion. in the case of a plea of guilty or nolo contendere. See §3A1. effective November 1. effective November 1.1 effective November 1.1(c).2.4 (Interference with Civil Rights Under Color of Law). 1989 (see Appendix C. amendment 303).3. The determination of the applicable alternative base offense level is to be based on the entire conduct underlying the count of conviction (i.2 (Conspiracy to Interfere with Civil Rights). 1990 (see Appendix C.1(a) will apply. disability. November 1. 1987. amendment 521). or to the Chapter Two offense levels for each of the underlying offenses. An adjustment from §3A1.1 effective November 1.. amendment 591). Damage to Religious Real Property).November 1. amendments 313 and 327).e. use the Chapter Two offense levels for each of the underlying offenses (with each underlying offense treated as if contained in a separate count of conviction). or sexual orientation of any person. was deleted by consolidation with §2H1.1(b) applies.1 (Aggravating Role). November 1. was deleted by consolidation with §2H1. however. §2H1. 1990 (see Appendix C. 1987.4. 1987. If the finder of fact at trial or. [Deleted] Historical Note: Section 2H1. if a 6-level adjustment from §2H1. amendment 303). §2H1.1(a) will not apply. Amended effective November 1. effective November 1.1 effective November 1. 1989 (see Appendix C. 2009 GUIDELINES MANUAL §2H1. 1995 (see Appendix C. 3. do not apply §3B1. amendment 165). 1995 (see Appendix C. 2. or (4). an additional 3-level enhancement from §3A1.3 (Use of Force or Threat of Force to Deny Benefits or Rights in Furtherance of Discrimination. [Deleted] Historical Note: Section 2H1. amendment 521). the conduct taken as a whole). November 1.3 (Abuse of Position of Trust or Use of Special Skill). amendment 430). 1991 (see Appendix C. 1989 (see Appendix C. was deleted by consolidation with §2H1. 4.4 (a)(2). amendment 521). amended effective November 1. as appropriate. amended effective November 1. If subsection (b)(1) applies. Then apply subsection (b) to the alternative base offense level. Use the alternative base offense level only if it is greater than each of the Chapter Two offense levels determined above. (3). Historical Note: Effective November 1.

242. Obstructing an Election or Registration (a) Base Offense Level (Apply the greatest): (1) 18. 1995 (see Appendix C. by deceptive or dishonest conduct. 245(b)(1)(A). 594.1. A defendant who is a public official or who directs others to engage in criminal conduct is subject to an enhancement from Chapter Three. 2003 (see Appendix C. amended effective November 1. [Deleted] GUIDELINES MANUAL November 1. Application Note: 1. vote for or against a particular candidate. was deleted by consolidation with §2H1. or register to vote. see Appendix A (Statutory Index). November 1. Historical Note: Effective November 1. 1989 (see Appendix C. Amended effective November 1. POLITICAL RIGHTS §2H2. or by bribery.1 effective November 1. an upward departure may be warranted.5. 593. bribery. §§ 1973i. except as provided in (3) below. 1987. or agreed to accept anything of value to vote. amendment 661). amendment 167) and November 1. (B) gave false information to establish eligibility to vote. refrain from voting.C. fraud. Part B (Role in the Offense). if the defendant (A) solicited.§2H1. or 12. (b). amendment 168). if the obstruction occurred by forgery. amendment 328). 1989 (see Appendix C. or other means.C. theft. 1995 (see Appendix C. 1973j(a). 597. Part K (Departures). 42 U. accepted. amendment 534). November 1. Background: Alternative base offense levels cover three major ways of obstructing an election: by force. or (C) voted more than once in a federal election. effective November 1. (2) (3) Commentary Statutory Provisions: 18 U.5 (Other Deprivations of Rights or Benefits in Furtherance of Discrimination). 1990 (see Appendix C. See Chapter Five. 1987. §§ 241. 2009 Historical Note: Section 2H1. demanded. For additional statutory provision(s).S. If the offense resulted in bodily injury or significant property damage.5 §2H1. or 6. * * * * * 2. 592. if the obstruction occurred by use of force or threat of force against person(s) or property.S. or involved corrupting a public official. – 224 – . amendment 521). 1015(f). deceit.

1039. 42 U.C. if the offense of conviction has a statutory maximum term of imprisonment of one year or less but more than six months.C. § 605. (a)(5). apply the guideline applicable to an attempt to commit that other offense. 1905. 16984. Commentary Statutory Provisions: 8 U.C. § 1039(d) or (e). or the defendant is convicted under 18 U. §§ 7213(a)(1)-(3). 18 U.S. 47 U.1. if the resulting offense level is greater than that determined above. 26 U. Satellite Cable Transmissions.S. 2511. 2009 GUIDELINES MANUAL §2H3. increase by 10 levels. § 119.C. see Appendix A (Statutory Index). Eavesdropping. (b) Specific Offense Characteristics (1) If (A) the defendant is convicted under 18 U. § 1375a(d)(3)(C). increase by 3 levels. 7216.1 * * * * * 3. Interception of Communications.C.C. increase by 8 levels. Application Notes: 1.C. PRIVACY AND EAVESDROPPING §2H3. §§ 16962. Disclosure of Certain Private or Protected Information (a) Base Offense Level (Apply the greater): (1) (2) 9.S. or (B) the purpose of the offense was to obtain direct or indirect commercial advantage or economic gain.S. (Apply the greater) If— (A) the defendant is convicted under 18 U. (d).S. § 119. (d)(5)(B).—If the offense involved interception of satellite cable transmissions for purposes of commercial advantage or private financial gain (including – 225 – . and the offense involved the use of a computer or an interactive computer service to make restricted personal information about a covered person publicly available.November 1. §§ 119. For additional statutory provision(s).S. or 6.S. 7213A.C. (2) (B) (c) Cross Reference (1) If the purpose of the offense was to facilitate another offense.S.

§2H3.1

GUIDELINES MANUAL

November 1, 2009

avoiding payment of fees), apply §2B5.3 (Criminal Infringement of Copyright) rather than this guideline. 2. Imposition of Sentence for 18 U.S.C. § 1039(d) and (e).—Subsections 1039(d) and (e) of title 18, United States Code, require a term of imprisonment of not more than 5 years to be imposed in addition to any sentence imposed for a conviction under 18 U.S.C. § 1039(a), (b), or (c). In order to comply with the statute, the court should determine the appropriate "total punishment" and divide the sentence on the judgment form between the sentence attributable to the conviction under 18 U.S.C. § 1039(d) or (e) and the sentence attributable to the conviction under 18 U.S.C. § 1039(a), (b), or (c), specifying the number of months to be served for the conviction under 18 U.S.C. § 1039(d) or (e). For example, if the applicable adjusted guideline range is 15-21 months and the court determines a "total punishment" of 21 months is appropriate, a sentence of 9 months for conduct under 18 U.S.C. § 1039(a) plus 12 months for 18 U.S.C. § 1039(d) conduct would achieve the "total punishment" in a manner that satisfies the statutory requirement. Inapplicability of Chapter Three (Adjustments).—If the enhancement under subsection (b)(2) applies, do not apply §3A1.2 (Official Victim). Definitions.—For purposes of this guideline: "Computer" has the meaning given that term in 18 U.S.C. § 1030(e)(1). "Covered person" has the meaning given that term in 18 U.S.C. § 119(b). "Interactive computer service" has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U.S.C. § 230(f)(2)). "Means of identification" has the meaning given that term in 18 U.S.C. § 1028(d)(7), except that such means of identification shall be of an actual (i.e., not fictitious) individual, other than the defendant or a person for whose conduct the defendant is accountable under §1B1.3 (Relevant Conduct). "Personal information" means sensitive or private information involving an identifiable individual (including such information in the possession of a third party), including (A) medical records; (B) wills; (C) diaries; (D) private correspondence, including e-mail; (E) financial records; (F) photographs of a sensitive or private nature; or (G) similar information. "Restricted personal information" has the meaning given that term in 18 U.S.C. § 119(b). 5. Upward Departure.—There may be cases in which the offense level determined under this guideline substantially understates the seriousness of the offense. In such a case, an upward departure may be warranted. The following are examples of cases in which an upward departure may be warranted: (A) The offense involved personal information, means of identification, confidential phone records information, or tax return information of a substantial number of individuals.

3.

4.

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§2H3.3

(B)

The offense caused or risked substantial non-monetary harm (e.g. physical harm, psychological harm, or severe emotional trauma, or resulted in a substantial invasion of privacy interest) to individuals whose private or protected information was obtained.

Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendment 169); November 1, 2001 (see Appendix C, amendment 628); May 1, 2007 (see Appendix C, amendment 697); November 1, 2007 (see Appendix C, amendment 708); November 1, 2008 (see Appendix C, amendment 718); November 1, 2009 (see Appendix C, amendments 726 and 737).

§2H3.2.

Manufacturing, Distributing, Advertising, or Possessing an Eavesdropping Device (a) (b) Base Offense Level: 6 Specific Offense Characteristic (1) If the offense was committed for pecuniary gain, increase by 3 levels.

Commentary Statutory Provision: 18 U.S.C. § 2512.
Historical Note: Effective November 1, 1987.

§2H3.3.

Obstructing Correspondence (a) Base Offense Level: (1) (2) 6; or if the conduct was theft or destruction of mail, apply §2B1.1 (Theft, Property Destruction, and Fraud).

Commentary Statutory Provision: 18 U.S.C. § 1702. For additional statutory provision(s), see Appendix A (Statutory Index). Background: The statutory provision covered by this guideline is sometimes used to prosecute offenses more accurately described as theft or destruction of mail. In such cases, §2B1.1 (Theft, Property Destruction, and Fraud) is to be applied.
Historical Note: Effective November 1, 1987. Amended effective November 1, 1990 (see Appendix C, amendment 313); November 1, 2001 (see Appendix C, amendment 617).

* * * * *

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§2H4.1
4.

GUIDELINES MANUAL

November 1, 2009

PEONAGE, INVOLUNTARY SERVITUDE, SLAVE TRADE, AND CHILD SOLDIERS

Historical Note: Effective November 1, 1987. Amended effective November 1, 2009 (see Appendix C, amendment 733).

§2H4.1.

Peonage, Involuntary Servitude, Slave Trade, and Child Soldiers (a) Base Offense Level: (1) (2) 22; or 18, if (A) the defendant was convicted of an offense under 18 U.S.C. § 1592, or (B) the defendant was convicted of an offense under 18 U.S.C. § 1593A based on an act in violation of 18 U.S.C. § 1592.

(b)

Specific Offense Characteristics (1) (A) If any victim sustained permanent or life-threatening bodily injury, increase by 4 levels; or (B) if any victim sustained serious bodily injury, increase by 2 levels. If (A) a dangerous weapon was used, increase by 4 levels; or (B) a dangerous weapon was brandished, or the use of a dangerous weapon was threatened, increase by 2 levels. If any victim was held in a condition of peonage or involuntary servitude for (A) more than one year, increase by 3 levels; (B) between 180 days and one year, increase by 2 levels; or (C) more than 30 days but less than 180 days, increase by 1 level. If any other felony offense was committed during the commission of, or in connection with, the peonage or involuntary servitude offense, increase to the greater of: (A) (B) 2 plus the offense level as determined above, or 2 plus the offense level from the offense guideline applicable to that other offense, but in no event greater than level 43.

(2)

(3)

(4)

Commentary Statutory Provisions: 18 U.S.C. §§ 241, 1581-1590, 1592, 1593A, 2442. Application Notes: 1. For purposes of this guideline— "A dangerous weapon was used" means that a firearm was discharged, or that a firearm or other dangerous weapon was otherwise used. "The use of a dangerous weapon was
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§2H4.2

threatened" means that the use of a dangerous weapon was threatened regardless of whether a dangerous weapon was present. Definitions of "firearm," "dangerous weapon," "otherwise used," "serious bodily injury," and "permanent or life-threatening bodily injury" are found in the Commentary to §1B1.1 (Application Instructions). "Peonage or involuntary servitude" includes forced labor, slavery, and recruitment or use of a child soldier. 2. Under subsection (b)(4), "any other felony offense" means any conduct that constitutes a felony offense under federal, state, or local law (other than an offense that is itself covered by this subpart). When there is more than one such other offense, the most serious such offense (or group of closely related offenses in the case of offenses that would be grouped together under §3D1.2(d)) is to be used. See Application Note 3 of §1B1.5 (Interpretation of References to other Offense Guidelines). If the offense involved the holding of more than ten victims in a condition of peonage or involuntary servitude, an upward departure may be warranted. In a case in which the defendant was convicted under 18 U.S.C. §§ 1589(b) or 1593A, a downward departure may be warranted if the defendant benefitted from participating in a venture described in those sections without knowing that (i.e., in reckless disregard of the fact that) the venture had engaged in the criminal activity described in those sections.

3.

4.

Historical Note: Effective November 1, 1987. Amended effective November 1, 1995 (see Appendix C, amendment 521); May 1, 1997 (see Appendix C, amendment 542); November 1, 1997 (see Appendix C, amendment 559); May 1, 2001 (see Appendix C, amendment 612); November 1, 2001 (see Appendix C, amendment 627); November 1, 2009 (see Appendix C, amendments 730 and 733).

§2H4.2.

Willful Violations of the Migrant and Seasonal Agricultural Worker Protection Act (a) (b) Base Offense Level: 6

Specific Offense Characteristics (1) If the offense involved (i) serious bodily injury, increase by 4 levels; or (ii) bodily injury, increase by 2 levels. If the defendant committed any part of the instant offense subsequent to sustaining a civil or administrative adjudication for similar misconduct, increase by 2 levels.

(2)

Commentary Statutory Provision: 29 U.S.C. § 1851.

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§2H4.2
Application Notes: 1.

GUIDELINES MANUAL

November 1, 2009

Definitions.—For purposes of subsection (b)(1), "bodily injury" and "serious bodily injury" have the meaning given those terms in Application Note 1 of the Commentary to §1B1.1 (Application Instructions). Application of Subsection (b)(2).—Section 1851 of title 29, United States Code, covers a wide range of conduct. Accordingly, the enhancement in subsection (b)(2) applies only if the instant offense is similar to previous misconduct that resulted in a civil or administrative adjudication under the provisions of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. § 1801 et. seq.).

2.

Historical Note: Effective May 1, 2001 (see Appendix C, amendment 612). Amended effective November 1, 2001 (see Appendix C, amendment 627).

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§2J1.2

PART J - OFFENSES INVOLVING THE ADMINISTRATION OF JUSTICE

§2J1.1.

Contempt Apply §2X5.1 (Other Offenses).

Commentary Statutory Provisions: 18 U.S.C. §§ 401, 228. For additional statutory provision(s), see Appendix A (Statutory Index). Application Notes: 1. In General.—Because misconduct constituting contempt varies significantly and the nature of the contemptuous conduct, the circumstances under which the contempt was committed, the effect the misconduct had on the administration of justice, and the need to vindicate the authority of the court are highly context-dependent, the Commission has not provided a specific guideline for this offense. In certain cases, the offense conduct will be sufficiently analogous to §2J1.2 (Obstruction of Justice) for that guideline to apply. Willful Failure to Pay Court-Ordered Child Support.—For offenses involving the willful failure to pay court-ordered child support (violations of 18 U.S.C. § 228), the most analogous guideline is §2B1.1 (Theft, Property Destruction, and Fraud). The amount of the loss is the amount of child support that the defendant willfully failed to pay. Note: This guideline applies to second and subsequent offenses under 18 U.S.C. § 228(a)(1) and to any offense under 18 U.S.C. § 228(a)(2) and (3). A first offense under 18 U.S.C. § 228(a)(1) is not covered by this guideline because it is a Class B misdemeanor. Violation of Judicial Order Enjoining Fraudulent Behavior.—In a case involving a violation of a judicial order enjoining fraudulent behavior, the most analogous guideline is §2B1.1. In such a case, §2B1.1(b)(8)(C) (pertaining to a violation of a prior, specific judicial order) ordinarily would apply.

2.

3.

Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendments 170 and 171); November 1, 1993 (see Appendix C, amendment 496); November 1, 1998 (see Appendix C, amendment 588); November 1, 2001 (see Appendix C, amendment 617); November 1, 2003 (see Appendix C, amendment 653); November 1, 2009 (see Appendix C, amendment 736).

§2J1.2.

Obstruction of Justice (a) (b) Base Offense Level: 14 Specific Offense Characteristics

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§2J1.2
(1)

GUIDELINES MANUAL

November 1, 2009

(Apply the greatest): (A) If the (i) defendant was convicted under 18 U.S.C. § 1001; and (ii) statutory maximum term of eight years’ imprisonment applies because the matter relates to sex offenses under 18 U.S.C. § 1591 or chapters 109A, 109B, 110, or 117 of title 18, United States Code, increase by 4 levels. If the offense involved causing or threatening to cause physical injury to a person, or property damage, in order to obstruct the administration of justice, increase by 8 levels. If the (i) defendant was convicted under 18 U.S.C. § 1001 or § 1505; and (ii) statutory maximum term of eight years’ imprisonment applies because the matter relates to international terrorism or domestic terrorism, increase by 12 levels.

(B)

(C)

(2)

If the offense resulted in substantial interference with the administration of justice, increase by 3 levels. If the offense (A) involved the destruction, alteration, or fabrication of a substantial number of records, documents, or tangible objects; (B) involved the selection of any essential or especially probative record, document, or tangible object, to destroy or alter; or (C) was otherwise extensive in scope, planning, or preparation, increase by 2 levels.

(3)

(c)

Cross Reference (1) If the offense involved obstructing the investigation or prosecution of a criminal offense, apply §2X3.1 (Accessory After the Fact) in respect to that criminal offense, if the resulting offense level is greater than that determined above.

Commentary Statutory Provisions: 18 U.S.C. §§ 1001 (when the statutory maximum term of eight years’ imprisonment applies because the matter relates to international terrorism or domestic terrorism, or to sex offenses under 18 U.S.C. § 1591 or chapters 109A, 109B, 110, or 117 of title 18, United States Code), 1503, 1505-1513, 1516, 1519. For additional statutory provision(s), see Appendix A (Statutory Index). Application Notes: 1. Definitions.—For purposes of this guideline: "Domestic terrorism" has the meaning given that term in 18 U.S.C. § 2331(5).

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November 1, 2009

GUIDELINES MANUAL

§2J1.2

"International terrorism" has the meaning given that term in 18 U.S.C. § 2331(1). "Records, documents, or tangible objects" includes (A) records, documents, or tangible objects that are stored on, or that are, magnetic, optical, digital, other electronic, or other storage mediums or devices; and (B) wire or electronic communications. "Substantial interference with the administration of justice" includes a premature or improper termination of a felony investigation; an indictment, verdict, or any judicial determination based upon perjury, false testimony, or other false evidence; or the unnecessary expenditure of substantial governmental or court resources. 2. Chapter Three Adjustments.— (A) Inapplicability of Chapter Three, Part C.—For offenses covered under this section, Chapter Three, Part C (Obstruction) does not apply, unless the defendant obstructed the investigation, prosecution, or sentencing of the obstruction of justice count. Interaction with Terrorism Adjustment.—If §3A1.4 (Terrorism) applies, do not apply subsection (b)(1)(C).

(B)

3.

Convictions for the Underlying Offense.—In the event that the defendant is convicted of an offense sentenced under this section as well as for the underlying offense (i.e., the offense that is the object of the obstruction), see the Commentary to Chapter Three, Part C (Obstruction), and to §3D1.2(c) (Groups of Closely Related Counts). Upward Departure Considerations.—If a weapon was used, or bodily injury or significant property damage resulted, an upward departure may be warranted. See Chapter Five, Part K (Departures). In a case involving an act of extreme violence (for example, retaliating against a government witness by throwing acid in the witness’s face) or a particularly serious sex offense, an upward departure would be warranted. Subsection (b)(1)(B).—The inclusion of "property damage" under subsection (b)(1)(B) is designed to address cases in which property damage is caused or threatened as a means of intimidation or retaliation (e.g., to intimidate a witness from, or retaliate against a witness for, testifying). Subsection (b)(1)(B) is not intended to apply, for example, where the offense consisted of destroying a ledger containing an incriminating entry.

4.

5.

Background: This section addresses offenses involving the obstruction of justice generally prosecuted under the above-referenced statutory provisions. Numerous offenses of varying seriousness may constitute obstruction of justice: using threats or force to intimidate or influence a juror or federal officer; obstructing a civil or administrative proceeding; stealing or altering court records; unlawfully intercepting grand jury deliberations; obstructing a criminal investigation; obstructing a state or local investigation of illegal gambling; using intimidation or force to influence testimony, alter evidence, evade legal process, or obstruct the communication of a judge or law enforcement officer; or causing a witness bodily injury or property damage in retaliation for providing testimony, information or evidence in a federal proceeding. The conduct that gives rise to the violation may, therefore, range from a mere threat to an act of extreme violence.

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§2J1.2

GUIDELINES MANUAL

November 1, 2009

The specific offense characteristics reflect the more serious forms of obstruction. Because the conduct covered by this guideline is frequently part of an effort to avoid punishment for an offense that the defendant has committed or to assist another person to escape punishment for an offense, a cross reference to §2X3.1 (Accessory After the Fact) is provided. Use of this cross reference will provide an enhanced offense level when the obstruction is in respect to a particularly serious offense, whether such offense was committed by the defendant or another person.
Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendments 172-174); November 1, 1991 (see Appendix C, amendment 401); January 25, 2003 (see Appendix C, amendment 647); November 1, 2003 (see Appendix C, amendment 653); October 24, 2005 (see Appendix C, amendment 676); November 1, 2006 (see Appendix C, amendment 690); November 1, 2007 (see Appendix C, amendment 701).

§2J1.3.

Perjury or Subornation of Perjury; Bribery of Witness (a) (b) Base Offense Level: 14 Specific Offense Characteristics (1) If the offense involved causing or threatening to cause physical injury to a person, or property damage, in order to suborn perjury, increase by 8 levels. If the perjury, subornation of perjury, or witness bribery resulted in substantial interference with the administration of justice, increase by 3 levels.

(2)

(c)

Cross Reference (1) If the offense involved perjury, subornation of perjury, or witness bribery in respect to a criminal offense, apply §2X3.1 (Accessory After the Fact) in respect to that criminal offense, if the resulting offense level is greater than that determined above.

(d)

Special Instruction (1) In the case of counts of perjury or subornation of perjury arising from testimony given, or to be given, in separate proceedings, do not group the counts together under §3D1.2 (Groups of Closely Related Counts).

Commentary Statutory Provisions: 18 U.S.C. §§ 201(b)(3), (4), 1621-1623. For additional statutory provision(s), see Appendix A (Statutory Index).

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November 1, 2009

GUIDELINES MANUAL

§2J1.4

Application Notes: 1. "Substantial interference with the administration of justice" includes a premature or improper termination of a felony investigation; an indictment, verdict, or any judicial determination based upon perjury, false testimony, or other false evidence; or the unnecessary expenditure of substantial governmental or court resources. For offenses covered under this section, Chapter Three, Part C (Obstruction) does not apply, unless the defendant obstructed the investigation or trial of the perjury count. In the event that the defendant is convicted under this section as well as for the underlying offense (i.e., the offense with respect to which he committed perjury, subornation of perjury, or witness bribery), see the Commentary to Chapter Three, Part C (Obstruction), and to §3D1.2(c) (Groups of Closely Related Counts). If a weapon was used, or bodily injury or significant property damage resulted, an upward departure may be warranted. See Chapter Five, Part K (Departures). "Separate proceedings," as used in subsection (d)(1), includes different proceedings in the same case or matter (e.g., a grand jury proceeding and a trial, or a trial and retrial), and proceedings in separate cases or matters (e.g., separate trials of codefendants), but does not include multiple grand jury proceedings in the same case.

2.

3.

4.

5.

Background: This section applies to perjury, subornation of perjury, and witness bribery, generally prosecuted under the referenced statutes. The guidelines provide a higher penalty for perjury than the pre-guidelines practice estimate of ten months imprisonment. The Commission believes that perjury should be treated similarly to obstruction of justice. Therefore, the same considerations for enhancing a sentence are applied in the specific offense characteristics, and an alternative reference to the guideline for accessory after the fact is made.
Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendment 175); November 1, 1991 (see Appendix C, amendments 401 and 402); November 1, 1993 (see Appendix C, amendment 481); November 1, 2003 (see Appendix C, amendment 653).

§2J1.4.

Impersonation (a) (b) Base Offense Level: 6 Specific Offense Characteristic (1) If the impersonation was committed for the purpose of conducting an unlawful arrest, detention, or search, increase by 6 levels.

(c)

Cross Reference (1) If the impersonation was to facilitate another offense, apply the guideline for an attempt to commit that offense, if the resulting offense level is greater than the offense level determined above.

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§2J1.4

GUIDELINES MANUAL

November 1, 2009

Commentary Statutory Provisions: 18 U.S.C. §§ 912, 913. Background: This section applies to impersonation of a federal officer, agent, or employee; and impersonation to conduct an unlawful search or arrest.
Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendment 176).

§2J1.5.

Failure to Appear by Material Witness (a) Base Offense Level: (1) (2) (b) 6, if in respect to a felony; or 4, if in respect to a misdemeanor.

Specific Offense Characteristic (1) If the offense resulted in substantial interference with the administration of justice, increase by 3 levels.

Commentary Statutory Provisions: 18 U.S.C. § 3146(b)(1)(B). For additional statutory provision(s), see Appendix A (Statutory Index). Application Notes: 1. "Substantial interference with the administration of justice" includes a premature or improper termination of a felony investigation; an indictment, verdict, or any judicial determination based upon perjury, false testimony, or other false evidence; or the unnecessary expenditure of substantial governmental or court resources. By statute, a term of imprisonment imposed for an offense under 18 U.S.C. § 3146(b)(1)(B) runs consecutively to any other term of imprisonment imposed. 18 U.S.C. § 3146(b)(2).

2.

Background: This section applies to a failure to appear by a material witness. The base offense level incorporates a distinction as to whether the failure to appear was in respect to a felony or misdemeanor prosecution. The offense under 18 U.S.C. § 3146(b)(1)(B) is a misdemeanor for which the maximum period of imprisonment authorized by statute is one year.
Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendment 177); November 1, 1991 (see Appendix C, amendment 401); November 1, 2009 (see Appendix C, amendment 737).

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state. otherwise. community treatment center. increase by 3 levels. (B) (C) Commentary Statutory Provision: 18 U. or punishable by a term of imprisonment of five years or more. (2) If the base offense level is determined under subsection (a)(2).C. increase by 9 levels.6. while away from the facility. if the offense constituted a failure to report for service of sentence. Application Notes: 1. "halfway house. and subdivision (A) above does not apply. – 237 – . § 3146(b)(1). 2009 GUIDELINES MANUAL §2J1.November 1." or similar facility. unless the defendant obstructed the investigation or trial of the failure to appear count. 2. decrease by 2 levels. Failure to Appear by Defendant (a) Base Offense Level: (1) 11. and the underlying offense is -(A) punishable by death or imprisonment for a term of fifteen years or more. or 6. that this reduction shall not apply if the defendant. and the defendant -(A) voluntarily surrendered within 96 hours of the time he was originally scheduled to report. committed any federal. but less than fifteen years. or local offense punishable by a term of imprisonment of one year or more.6 §2J1. (B) Provided. or was ordered to report to a community corrections center. Part C (Obstruction) does not apply. "Underlying offense" means the offense in respect to which the defendant failed to appear. increase by 6 levels.S. Chapter Three. decrease by 5 levels. For offenses covered under this section. (2) (b) Specific Offense Characteristics (1) If the base offense level is determined under subsection (a)(1). or a felony punishable by a term of imprisonment of less than five years. however.

1(b)(1). the defendant may be sentenced on the underlying offense (the offense in respect to which the defendant failed to appear) before being sentenced on the failure to appear offense.C. and the failure to appear count and the count or counts for the underlying offense are grouped together under §3D1.C. (n. November 1. 2001 (see Appendix C. amendment 680). if the combined applicable guideline range for both counts is 30-37 months and the court determines that a "total punishment" of 36 months is appropriate. § 3146(b)(2). although if a sentence of imprisonment on the failure to appear count is imposed. comment. appeal. perjury) during the investigation. or sentencing of the instant offense. the statute requires that the sentence be imposed to run consecutively to any other sentence of imprisonment. Therefore. or surrender for service of sentence.5 apply.1 (Obstructing or Impeding the Administration of Justice) as an obstruction of the underlying offense. as required by 18 U. prosecution.) The combined sentence will then be constructed to provide a "total punishment" that satisfies the requirements both of §5G1. the offense level increases in relation to the statutory maximum of the underlying offense.S. 5.S.§2J1.) 4. Background: This section applies to a failure to appear by a defendant who was released pending trial.. Historical Note: Effective November 1. § 3146(b)(2) does not require a sentence of imprisonment on a failure to appear count. 1987. (n.2. – 238 – . failure to appear conduct has the effect of ensuring an incremental. In such cases. other than a case of failure to appear for service of sentence. consecutive punishment for the failure to appear count. amendment 579). 2009 In the case of a failure to appear for service of sentence. sentencing. 1998 (see Appendix C.2(c). In some cases.g. comment.C.. any term of imprisonment imposed on the failure to appear count is to be imposed consecutively to any term of imprisonment imposed for the underlying offense.1).3(a). a sentence of 30 months for the underlying offense plus a consecutive six months’ sentence for the failure to appear count would satisfy these requirements. 2005 (see Appendix C. For example. and the defendant committed additional acts of obstructive behavior (e. § 3146(b)(2). (Note that 18 U.1-3D1. criminal history points for the sentence imposed on the underlying offense are to be counted in determining the guideline range on the failure to appear offense only where the offense level is determined under subsection (a)(1) (i. The upward departure will ensure an enhanced sentence for obstructive conduct for which no adjustment under §3C1. The guideline range for the failure to appear count is to be determined independently and the grouping rules of §§3D1.5 do not apply. November 1. unlike a count in which the statute mandates both a minimum and a consecutive sentence of imprisonment.e.6 3. the failure to appear is treated under §3C1. 1991 (see Appendix C. the grouping rules of §§3D1. amendment 403). in the case of a conviction on both the underlying offense and the failure to appear. (Note that the combination of this instruction and increasing the offense level for the obstructive. See §3D1.2 (Sentencing on Multiple Counts of Conviction) and 18 U. Amended effective November 1. an upward departure may be warranted. amendment 636).S. November 1. and §3D1.1 (Obstruction of Justice) is made because of the operation of the rules set out in Application Note 3. If a defendant is convicted of both the underlying offense and the failure to appear count. where the offense constituted a failure to report for service of sentence). However. November 1.1).1-3D1. Where the base offense level is determined under subsection (a)(2). See §5G1. amendment 329). GUIDELINES MANUAL November 1. 1990 (see Appendix C.

– 239 – .7. 1989 (see Appendix C. increase by 4 levels.9. Payment to Witness (a) (b) Base Offense Level: 6 Specific Offense Characteristic (1) If the payment was made or offered for refusing to testify or for the witness absenting himself to avoid testifying. 2009 GUIDELINES MANUAL §2J1.9 §2J1. Part C (Obstruction) does not apply unless the defendant obstructed the investigation or trial of the payment to witness count. Part C (Obstruction). Background: This section applies to witness gratuities in federal proceedings. amendment 179). amendment 32). Historical Note: Effective November 1.2(c) (Groups of Closely Related Counts). and to §3D1. November 1.e.3 effective November 1. Amendment 684). 1987. §2J1. For offenses covered under this section. amendment 178). 1993 (see Appendix C. November 1. amendments 180 and 181). was deleted by consolidation with §2J1. effective November 1. see the Commentary to Chapter Three. amendment 481). amendment 431). 1989 (see Appendix C. amended effective January 15. [Deleted] Historical Note: Effective November 1.S. Amended effective January 15. § 201(c)(2). 1991 (see Appendix C. 1987. and November 1. In the event that the defendant is convicted under this section as well as for the underlying offense (i. 1989 (see Appendix C.8. 2006 (see Appendix C..3 effective November 1. §2J1. amendment 33). November 1. amendment 401). the offense with respect to which the payment was made). Chapter Three.C. 1988 (see Appendix C. (3). 2.November 1. Application Notes: 1. 1987. 1991 (see Appendix C. [Deleted] Historical Note: Section 2J1. was deleted from Chapter Two and replaced by §3C1.8 (Bribery of Witness). Commentary Statutory Provisions: 18 U. 1988 (see Appendix C. Amended effective November 1.

EXPLOSIVES AND ARSON §2K1. was deleted by consolidation with §2K1. §2K1. Prohibited Transactions Involving Explosive Materials (a) Base Offense Level (Apply the Greatest): (1) 24.2. if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense. 1987. (k).3. imprisonment authorized by statute is one year. amendment 404).2 (Improper Storage of Explosive Materials). Improper Storage of Explosive Materials (a) Base Offense Level: 6 Commentary Statutory Provisions: 18 U.S.S. §2K1. Failure to Report Theft of Explosive Materials.C.1 effective November 1. 1991 (see Appendix C.§2K1. 1991 (see Appendix C.1 GUIDELINES MANUAL November 1.OFFENSES INVOLVING PUBLIC SAFETY 1. if the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense. amendment 481). 1993 (see Appendix C.1. The maximum term of Historical Note: Effective November 1. [Deleted] Historical Note: Section 2K1. if the defendant (A) was a prohibited person at the time the defendant committed the instant offense. November 1. see Appendix A (Statutory Index). Unlawful Receipt. Amended effective November 1. 18. amended effective November 1. amendment 404). 20. 844(b). Possession. or (B) knowingly distributed explosive materials to a prohibited person. or Transportation of Explosive Materials. For additional statutory provision(s). effective November 1. Background: The above-referenced provisions are misdemeanors. if the defendant was convicted under 18 U.C. 1987. amendment 481). § 842(p)(2). 16. or (2) (3) (4) – 240 – . 2009 PART K . 1993 (see Appendix C. §§ 842(j).

S. (3) If the defendant (A) was convicted under 18 U. increase by 2 levels. At least 100 but less than 250 lbs. apply -(A) §2X1. if the resulting offense level is greater than that determined above.C. Provided. or Conspiracy) in respect to that other offense if the resulting offense level is greater than that determined above. increase to level 18. (B) – 241 – . or more Increase in Level add 1 add 2 add 3 add 4 add 5. If the offense involved any explosive material that the defendant knew or had reason to believe was stolen. (c) Cross Reference (1) If the defendant (A) was convicted under 18 U. Solicitation. At least 500 but less than 1000 lbs. 2009 GUIDELINES MANUAL §2K1. otherwise.1 (Attempt. Subpart 1 (Homicide).3 (5) (b) 12. § 842(p)(2). If the resulting offense level is less than level 18. or reason to believe that it would be used or possessed in connection with another felony offense. or possessed or transferred any explosive material with knowledge or intent that it would be used or possessed in connection with another offense. or (B) used or possessed any explosive material in connection with the commission or attempted commission of another offense. or (B) used or possessed any explosive material in connection with another felony offense.November 1. At least 250 but less than 500 lbs. the most analogous offense guideline from Chapter Two. § 842(p)(2). or if death resulted. intent. Part A. that the cumulative offense level determined above shall not exceed level 29.C. 1000 lbs. increase by 4 levels. or possessed or transferred any explosive material with knowledge. Specific Offense Characteristics (1) If the offense involved twenty-five pounds or more of explosive materials. increase as follows: Weight of Explosive Material (A) (B) (C) (D) (E) (2) At least 25 but less than 100 lbs.S.

"prohibited person" means any person described in 18 U.C. Prohibited Transactions Involving Firearms or Ammunition) if the resulting offense level is greater. means any offense (federal. For purposes of calculating the weight of explosive materials under subsection (b)(1). (i). (l)-(o). 3. §§ 842(a)-(e).C. and detonators. "Explosives" is defined at 18 U.S.§2K1.1 (Application Instructions).1). count only those explosive materials that were unlawfully sought to be obtained. A destructive device. See 18 U. or local) punishable by imprisonment for a term exceeding one year. or conviction obtained. 26 U. For purposes of subsection (a)(4).C. For purposes of this guideline: "Controlled substance offense" has the meaning given that term in §4B1.S. defined in the Commentary to §1B1.3 GUIDELINES MANUAL November 1. "Felony offense. 844(d). For example. (h). regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed. § 844(j).C. § 841(c). 2283. Where the conduct charged in the count of which the defendant was convicted establishes that the offense involved a destructive device. Exclude the weight of any other shipping or packaging materials. (p)(2). "Crime of violence" has the meaning given that term in §4B1. the box that the dynamite was shipped in would not be included. "Explosive material(s)" include explosives. 2009 Commentary Statutory Provisions: 18 U.g. Application Notes: 1.2 (Definitions of Terms Used in Section 4B1.C. may contain explosive materials. A conviction for an offense committed prior to age eighteen years is an adult conviction if it is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted (e. whether or not a criminal charge was brought.S. the paper and fuse on a stick of dynamite would be included. – 242 – ." as used in subsection (b)(3). For purposes of calculating the weight of explosive materials under subsection (b)(1). § 5685.2(b) and Application Note 1 of the Commentary to §4B1. apply §2K2. 4.2. a federal conviction for an offense committed prior to the defendant’s eighteenth birthday is an adult conviction if the defendant was expressly proceeded against as an adult).S.1 (Unlawful Receipt. include only the weight of the actual explosive material and the weight of packaging material that is necessary for the use or detonation of the explosives.2(a) and Application Note 1 of the Commentary to §4B1.S. state. (g). A conviction for an offense committed at age eighteen years or older is an adult conviction. 6. Possession.. 5. unlawfully 2. blasting agents. § 842(i). "Felony conviction" means a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year. 1716. or Transportation of Firearms or Ammunition.

S.2(a)(2). amendment 471). Appendix C. or (4) the offense posed a substantial risk of death or bodily injury to multiple individuals. November 1.C.3 possessed. "that other offense" means. For purposes of applying subsection (a)(1) or (2).g. do not apply the adjustment in subsection (b)(2) because the base offense level itself takes such conduct into account.. and is convicted of no other offenses subject to this guideline. November 1. § 842(p)(2). with respect to an offense under 18 U. use only those felony convictions that are counted separately under §4A1.3). November 1. (3) the defendant knowingly distributed explosive materials to a person under twenty-one years of age. §4A1. 1992 (see. amendment 478). or local offense) is to be determined under §2X1. (a)(2). November 1. See §4A1. Part A (Criminal History). An upward departure may be warranted in any of the following circumstances: (1) the quantity of explosive materials significantly exceeded 1000 pounds. 1995 (see Appendix C. (b). November 1. where the defendant used or possessed a firearm or explosive to facilitate another firearms or explosives offense (e. or (a)(4) are also counted for purposes of determining criminal history points pursuant to Chapter Four. 1991 (see Appendix C.. Part A. the offense level for the underlying offense (which may be a federal. or unlawfully distributed. amendments 629 and 630).g. 7. 1993 (see. 2009 GUIDELINES MANUAL §2K1. plastic explosives). amendment 646). 2002 (see Appendix C. for purposes of subsection (c)(1)(A). amendment 568). 8. § 842(h) (offense involving stolen explosive materials). In addition. Appendix C.2. for purposes of applying subsection (a)(1). If the defendant is convicted under 18 U. Subpart 1 (Homicide). including any explosive material that a defendant attempted to obtain by making a false statement. Historical Note: Effective November 1. 11. amendment 183). November 1. or (c). November 1.C. the underlying Federal crime of violence. the defendant used or possessed a firearm to protect the delivery of an unlawful shipment of explosives). (2) the explosive materials were of a nature more volatile or dangerous than dynamite or conventional powder explosives (e. 1987. amendment 373). under the most analogous guideline from Chapter Two.S. In addition. 2007 (see Appendix C. amendment 655). (b).1 (Attempt. Under subsection (c)(1). Solicitation. comment. 1997 (see Appendix C. 1989 (see Appendix C. November 1. an upward departure under §5K2. – 243 – . "another felony offense" and "another offense" refer to offenses other than explosives or firearms possession or trafficking offenses.November 1.1(a). if death results. Amended effective November 1. Prior felony conviction(s) resulting in an increased base offense level under subsection (a)(1). As used in subsections (b)(3) and (c)(1). or (c). However.6 (Weapons and Dangerous Instrumentalities) may be warranted. 9. 10. 2001 (see Appendix C. use only those felony convictions that receive criminal history points under §4A1. state.1(a). amendment 534). amendment 700). or Conspiracy) or. 2003 (see Appendix C. (n. November 1.

increase by 2 levels.§2K1. an airport. if the offense (A) created a substantial risk of death or serious bodily injury to any person other than a participant in the offense. or a place of public use. a maritime facility. if the offense (A) created a substantial risk of death or serious bodily injury to any person other than a participant in the offense. increase by 2 levels. a state or government facility. – 244 – . or (iii) an airport. a mass transportation vehicle. and Fraud). a public transportation system. If the base offense level is not determined under (a)(4). or a vessel’s cargo. Property Damage by Use of Explosives (a) Base Offense Level (Apply the Greatest): (1) 24. or a vessel’s cargo. a public transportation system. an infrastructure facility. 20. a public transportation system. or (C) endangered (i) a dwelling. or a place of public use. a state or government facility. or (ii) an airport. an aircraft. a vessel. or (B) involved the destruction or attempted destruction of a dwelling. a mass transportation vehicle. a vessel. and that risk was created knowingly. or the offense was intended to cause death or serious bodily injury. 2009 Arson. a mass transportation facility. (ii) a structure other than a dwelling. an aircraft. or a place of public use. (2) (3) (4) (b) Specific Offense Characteristics (1) If the offense was committed to conceal another offense. a mass transportation facility. apply the most analogous guideline from Chapter Two. an infrastructure facility. or a vessel’s cargo. GUIDELINES MANUAL November 1. a maritime facility. Property Destruction. a maritime facility.1 (Theft. a mass transportation facility. and the offense occurred on a national cemetery. or 2 plus the offense level from §2B1. a state or government facility.4. (B) involved the destruction or attempted destruction of a structure other than (i) a dwelling. a vessel. 16. (2) (c) Cross Reference (1) If death resulted. Part A (Offenses Against the Person) if the resulting offense level is greater than that determined above.4 §2K1. if the offense involved the destruction of or tampering with aids to maritime navigation. an infrastructure facility. an aircraft. a mass transportation vehicle.

C. "place of public use". and (7). "Vessel" includes every description of watercraft or other artificial contrivance used.4 Commentary Statutory Provisions: 18 U. United States Code. "infrastructure facility". or adjacent to any waters subject to the jurisdiction of the United States and used. amendment 330). Part K (Departures). Upward Departure Provision. 49 U.S. or to warn of dangers or obstructions to navigation. 2282B.S. 3. 2001 (see Appendix C. 33. (a)(2). (b). (a)(4). For additional statutory provision(s). 2332a. amendment 637). 1989 (see Appendix C.—If bodily injury resulted. Definitions. amendment 404). November 1. 2009 GUIDELINES MANUAL §2K1. amendment 617).S. see Appendix A (Statutory Index). 2282A. amendment 655). or (B) under the jurisdiction of the Secretary of the Army. 2002 (see Appendix C. November 1. Risk of Death or Serious Bodily Injury. 81. or capable of being used. under. November 1. § 2332f(e)(3). November 1. 1987. § 60123(b). "National cemetery" means a cemetery (A) established under section 2400 of title 38. § 1992(d)(7).— Creating a substantial risk of death or serious bodily injury includes creating that risk to fire fighters and other emergency and law enforcement personnel who respond to or investigate an offense. and 185). 2. November 1. 1998 (see Appendix C. (h) (only in the case of an offense committed prior to November 18. 2332f.C. 2291. Application Notes: 1. 1992(a)(1). or destructive device. November 1. Amended effective November 1. 1991 (see Appendix C. (i). November 1. "State or government facility". amendments 182. and "public transportation system" have the meaning given those terms in 18 U. 844(f). Background: Subsection (b)(2) implements the directive to the Commission in section 2 of Public Law 105–101. an upward departure may be warranted. 184. 1855. 2003 (see Appendix C. "Maritime facility" means any structure or facility of any kind located in. as a means of transportation on water. operated.C. (6). or the Secretary of the Interior. "Explosives" includes any explosive. the Secretary of the Navy. amendment 576). amendments 699 and 700). Historical Note: Effective November 1. 1988).C. the Secretary of the Air Force.S. §§ 32(a). (5). explosive material. including any contiguous or adjoining property under common ownership or operation. See Chapter Five. 2007 (see Appendix C. on. 1990 (see Appendix C. 2275.—For purposes of this guideline: "Aids to maritime navigation" means any device external to a vessel intended to assist the navigator to determine position or save course. "Mass transportation" has the meaning given that term in 18 U. – 245 – .November 1. or maintained by a public or private entity. respectively. 1153.

1997 (see Appendix C.C. 1991 (see Appendix C. § 46505 (formerly 49 U. amendment 443). or with reckless disregard for the safety of human life. 1987.S. Licensee Recordkeeping Violations Involving Explosive Materials (a) (b) Base Offense Level: 6 Cross Reference (1) If a recordkeeping offense reflected an effort to conceal a substantive – 246 – . A decrease is provided in a case of mere negligence where the defendant was otherwise authorized to possess the weapon or material.1 (Attempt. if the resulting offense level is greater than that determined above. Solicitation. November 1.5 §2K1. decrease by 3 levels. 186. or Conspiracy). (2) (3) (c) Cross Reference (1) If the defendant used or possessed the weapon or material in committing or attempting another offense. Background: This guideline provides an enhancement where the defendant was a person prohibited by federal law from possession of the weapon or material. 1995 (see Appendix C. If the defendant’s possession of the weapon or material would have been lawful but for 49 U. Historical Note: Effective November 1. apply the guideline for such other offense.S. 187. Amended effective November 1. November 1. Commentary Statutory Provision: 49 U. increase by 15 levels. 2009 Possessing Dangerous Weapons or Materials While Boarding or Aboard an Aircraft (a) (b) Base Offense Level: 9 Specific Offense Characteristics If more than one applies. § 1472(l)). GUIDELINES MANUAL November 1. 1989 (see Appendix C.S.§2K1. November 1. If the defendant was prohibited by another federal law from possessing the weapon or material.C.5. §2K1. use the greatest: (1) If the offense was committed willfully and without regard for the safety of human life. as appropriate. November 1.C. increase by 2 levels. § 46505 and he acted with mere negligence. amendment 560).6. amendment 534). or §2X1. amendment 404). and 303). 1992 (see Appendix C. amendments 182.

Possession.4 effective November 1. amendment 331).C. 24. §2K1. effective November 1. amendment 373). apply §2K1.1." who are defined at 18 U. [Deleted] Historical Note: Section 2K1. 1989 (see Appendix C. (g).7 (Use of Fire or Explosives to Commit a Federal Felony).C. amended effective November 1. 1991 (see Appendix C. § 5845(a).S. § 5845(a). Using or Carrying Explosives in Certain Crimes). 1990 (see Appendix C. amendment 373). amendment 188). § 841(m). Historical Note: Effective November 1. was deleted by consolidation with §2K2. or (ii) firearm that is described in 26 U.7. 22.S. Background: The above-referenced provisions are recordkeeping offenses applicable only to "licensees. amended effective November 1. Commentary Statutory Provisions: 18 U. Possession. 1987.C. 1993 (see Appendix C. Prohibited Transactions Involving Explosive Materials). amendment 481).S. amendment 332). Transporting. or Transportation of Firearms or Ammunition. Unlawful Receipt. or (ii) firearm that is described in 26 U. if (A) the offense involved a (i) semiautomatic firearm that is capable of accepting a large capacity magazine.6 (Shipping. and (B) the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either (2) (3) – 247 – .C. 1991 (see Appendix C. if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense. 1990 (see Appendix C. effective November 1. A former §2K1. or Receiving Explosives with Felonious Intent or Knowledge. § 842(f). amendment 303) and November 1. 1989 (see Appendix C. 2009 GUIDELINES MANUAL §2K2.November 1.3 (Unlawful Receipt. if (A) the offense involved a (i) semiautomatic firearm that is capable of accepting a large capacity magazine. FIREARMS §2K2. was deleted by consolidation with §2K1.3 effective November 1. and (B) the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense.1 explosive materials offense. or Transportation of Explosives Materials. Prohibited Transactions Involving Firearms or Ammunition (a) Base Offense Level (Apply the Greatest): (1) 26. * * * * * 2.S.

S. § 922(d). 2009 a crime of violence or a controlled substance offense.§2K2. 14. (4) 20. or (x)(1).S. (7) (8) (b) Specific Offense Characteristics (1) If the offense involved three or more firearms.S. (B) (5) (6) 18.C. § 5845(a). § 922(c).C.C. If the offense involved— (A) a destructive device that is a portable rocket. if the defendant is convicted under 18 U. other than a defendant subject to subsection (a)(1). a missile. possessed all ammunition and firearms solely for lawful sporting purposes or collection. or a device for use in launching a portable rocket or a missile. or (3) – 248 – .S. or (II) firearm that is described in 26 U.1 GUIDELINES MANUAL November 1. if the offense involved a firearm described in 26 U. except as provided below. (s). (a)(2). (t). increase as follows: Number of Firearms (A) (B) (C) (D) (E) (2) 3-7 8-24 25-99 100-199 200 or more Increase in Level add 2 add 4 add 6 add 8 add 10. if the defendant (A) was a prohibited person at the time the defendant committed the instant offense. or the (i) offense involved a (I) semiautomatic firearm that is capable of accepting a large capacity magazine. if -(A) the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense. or (a)(5). and (ii) defendant (I) was a prohibited person at the time the defendant committed the instant offense. (e). § 922(d).S. (f). or (B) is convicted under 18 U.C. and did not unlawfully discharge or otherwise unlawfully use such firearms or ammunition. or (II) is convicted under 18 U. increase by 15 levels. (a)(3). If the defendant. (m). 12. decrease the offense level determined above to level 6. or 6.C. (a)(4). § 5845(a).

increase by 4 levels. 26 U. (6) (7) (c) Cross Reference (1) If the defendant used or possessed any firearm or ammunition in connection with the commission or attempted commission of another offense. Subpart 1 (Homicide). – 249 – .S. Part A. (5) If the defendant engaged in the trafficking of firearms. If the defendant used or possessed any firearm or ammunition in connection with another felony offense. except if subsection (b)(3)(A) applies.1 (Attempt. (x)(1).S. increase to the offense level for the substantive offense. §§ 922(a)-(p). if the resulting offense level is greater than that determined above. increase by 4 levels. If the resulting offense level is less than level 18. (b). or Conspiracy) in respect to that other offense. If a recordkeeping offense reflected an effort to conceal a substantive offense involving firearms or ammunition. For additional statutory provisions.1 (B) a destructive device other than a destructive device referred to in subdivision (A). increase to level 18. (B) Commentary Statutory Provisions: 18 U. intent. 2332g. The cumulative offense level determined from the application of subsections (b)(1) through (b)(4) may not exceed level 29.C. 2009 GUIDELINES MANUAL §2K2. (k)-(o). or reason to believe that it would be used or possessed in connection with another felony offense. or if death resulted. (e)-(i). the most analogous offense guideline from Chapter Two. 924(a). if the resulting offense level is greater than that determined above.November 1.C. increase by 4 levels. see Appendix A (Statutory Index). (4) If any firearm (A) was stolen. apply -(A) §2X1. § 5861(a)-(l). or possessed or transferred any firearm or ammunition with knowledge. (r)-(w). increase by 2 levels. or possessed or transferred a firearm or ammunition with knowledge or intent that it would be used or possessed in connection with another offense. Solicitation. increase by 2 levels. or (B) had an altered or obliterated serial number.

A conviction for an offense committed prior to age eighteen years is an adult conviction if it is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted (e.C. nor any other underlying unlawful purpose was involved. "Felony conviction" means a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year.— Subsection (a)(7) includes the interstate transportation or interstate distribution of firearms. count only those firearms that were unlawfully sought to be obtained.C.1 Application Notes: 1. In the unusual case in which it is established that neither avoidance of state. 2. or other federal law restricting the possession of firearms. Application of Subsection (b)(1). 4. a "semiautomatic firearm capable of accepting a large capacity magazine" means a semiautomatic firearm that has the ability to fire many rounds without reloading because at the time of the offense (A) the firearm had attached to it a magazine or similar device that could accept more than 15 rounds of ammunition. GUIDELINES MANUAL November 1. This definition does not include a semiautomatic firearm with an attached tubular device capable of operating only with . or (B) a magazine or similar device that could accept more than 15 rounds of ammunition was in close proximity to the firearm. 3.2(b) and Application Note 1 of the Commentary to §4B1. which is frequently committed in violation of state. § 5845(f).2 (Definitions of Terms Used in Section 4B1.1).C. regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed. A conviction for an offense committed at age eighteen years or older is an adult conviction. § 922(g) or § 922(n)..C. and (a)(4).§2K2. (a)(3).S.2. "Firearm" has the meaning given that term in 18 U.22 caliber rim fire ammunition.— For purposes of this guideline: "Ammunition" has the meaning given that term in 18 U. 2009 Definitions. "Crime of violence" has the meaning given that term in §4B1. Semiautomatic Firearm Capable of Accepting a Large Capacity Magazine.g. Definition of "Prohibited Person".2(a) and Application Note 1 of the Commentary to §4B1.S. "Destructive device" has the meaning given that term in 26 U. or for some other underlying unlawful purpose. Application of Subsection (a)(7). local. a federal conviction for an offense committed prior to the defendant’s eighteenth birthday is an adult conviction if the defendant was expressly proceeded against as an adult). "Controlled substance offense" has the meaning given that term in §4B1.—For purposes of subsections (a)(4)(B) and (a)(6). – 250 – . § 921(a)(17)(A).S. § 921(a)(3). 5. "prohibited person" means any person described in 18 U. a reduction in the base offense level to no lower than level 6 may be warranted to reflect the less serious nature of the violation.S.—For purposes of calculating the number of firearms under subsection (b)(1).—For purposes of subsections (a)(1). or other federal firearms law. local.

—Subsection (b)(4) applies regardless of whether the 7.C.S. – 251 – . it the offense involved a stolen firearm or stolen ammunition. or 18 U. For example. Application of Subsection (b)(4). § 922(k) or 26 U. Similarly.1 unlawfully possessed. Offenses involving such devices cover a wide range of offense conduct and involve different degrees of risk to the public welfare depending on the type of destructive device involved and the location or manner in which that destructive device was possessed or transported.. apply subsection (b)(4)(B). (B) Knowledge or Reason to Believe.(a)(5). including any firearm that a defendant obtained or attempted to obtain by making a false statement to a licensed dealer. 6.C.— (A) Interaction with Subsection (a)(7)..—A defendant whose offense involves a destructive device receives both the base offense level from the subsection applicable to a firearm listed in 26 U. and the applicable enhancement under subsection (b)(3). apply subsection (b)(4)(A). This is because the base offense level takes into account that the firearm or ammunition was stolen.g. if the offense to which §2K2.C. or the risk of death or serious bodily injury that the destructive device created.1 applies is 18 U. a pipe bomb in a populated train station creates a substantially greater risk to the public welfare.14 (Public Welfare). § 924(l) or (m) (offenses involving a stolen firearm or stolen ammunition) and the base offense level is determined under subsection (a)(7).November 1. do not apply the enhancement in subsection (b)(4)(B).1 applies is 18 U. § 5845(a) (e. or (u). prior convictions for offenses involving firearms). 2009 GUIDELINES MANUAL §2K2.1 (Death). the location and circumstances of possession and actual use. (j). the nature of the defendant’s criminal history (e. 8. do not apply the enhancement in subsection (b)(4)(A). § 5861(g) or (h) (offenses involving an altered or obliterated serial number) and the base offense level is determined under subsection (a)(7). and 5K2. However. than an incendiary device in an isolated area.g. In a case in which the cumulative result of the increased base offense level and the enhancement under subsection (b)(3) does not adequately capture the seriousness of the offense because of the type of destructive device involved. § 922(i). Note that where the base offense level is determined under subsections (a)(1) . and the extent to which possession was restricted by local law. Destructive Devices. and a substantially greater risk of death or serious bodily injury. This is because the base offense level takes into account that the firearm had an altered or obliterated serial number.S.C. an upward departure may be warranted.C.S. Such devices pose a considerably greater risk to the public welfare than other National Firearms Act weapons.S.—If the only offense to which §2K2. See also §§5K2.S. 5K2.2 (Physical Injury). Relevant surrounding circumstances include the number and type of firearms. subsection (a)(1). Application of Subsection (b)(2). if the offense involved a firearm with an altered or obliterated serial number. the amount and type of ammunition. the risk to the public welfare. or unlawfully distributed. However.—Under subsection (b)(2). (a)(3). subsection (b)(2) is not applicable. "lawful sporting purposes or collection" as determined by the surrounding circumstances. provides for a reduction to an offense level of 6. or (a)(5)). (a)(4)(B).

C. 2009 defendant knew or had reason to believe that the firearm was stolen or had an altered or obliterated serial number.1(a). § 921(a)(17)(B)). See §4B1. 10.g. or (4) the offense posed a substantial risk of death or bodily injury to multiple individuals (see Application Note 7). (n.1 GUIDELINES MANUAL November 1. for purposes of applying subsection (a)(1) and (a)(2). (3) the offense involved large quantities of armor-piercing ammunition (defined at 18 U. 11.2. 13. (a)(2). or (c). § 922(p)). transfer. (b). or disposal of a firearm to an individual— (I) (II) whose possession or receipt of the firearm would be unlawful. or otherwise disposed of two or more firearms to another individual. (2) the offense involved multiple National Firearms Act weapons (e. or (a)(6) are also counted for purposes of determining criminal history points pursuant to Chapter Four. §4A1.C. the offense level is increased to the offense level applicable to the sale of a firearm to a prohibited person). military type assault rifles.1(a). and knew or had reason to believe that such conduct would result in the transport.—Subsection (b)(5) applies. (ii) – 252 – . (a)(3).— Under subsection (b)(7). use only those felony convictions that receive criminal history points under §4A1.g.S. transfer.2(a)(2). (3). (b).§2K2.C. or received two or more firearms with the intent to transport. Part A (Criminal History). Prior Felony Convictions. or (c). the offense level is increased to the offense level for the substantive firearms or ammunition offense (e. machineguns. In addition. § 924(e) is an Armed Career Criminal.—For purposes of applying subsection (a)(1).—A defendant who is subject to an enhanced sentence under the provisions of 18 U.— (A) In General.. regardless of whether anything of value was exchanged. use only those felony convictions that are counted separately under §4A1. (a)(4)(A).. Application of Subsection (b)(5).S. 9. Prior felony conviction(s) resulting in an increased base offense level under subsection (a)(1). or otherwise dispose of firearms to another individual.4. destructive devices). 12. See §4A1.—An upward departure may be warranted in any of the following circumstances: (1) the number of firearms substantially exceeded 200. or (4)(A). non-detectable ("plastic") firearms (defined at 18 U. transferred. Upward Departure Provisions. Armed Career Criminal. or who intended to use or dispose of the firearm unlawfully. Application of Subsection (b)(7). (a)(4)(B).S. if the defendant falsifies a record to conceal the sale of a firearm to a prohibited person.3). comment. if a record-keeping offense was committed to conceal a substantive firearms or ammunition offense. (2). if the defendant— (i) transported.

respectively. If the defendant used or transferred one of such firearms in connection with another felony offense (i.November 1. an offense other than a firearms possession or trafficking offense) an enhancement under subsection (b)(6) also would apply. or local offense. commanded. (B) (C) – 253 – . (D) 14. even if the defendant did not engage in any other conduct with that firearm during the course of the burglary. regardless of whether a criminal charge was brought. other than the explosive or firearms possession or trafficking offense. punishable by imprisonment for a term exceeding one year.—For purposes of this subsection: "Individual whose possession or receipt of the firearm would be unlawful" means an individual who (i) has a prior conviction for a crime of violence.— "Another felony offense". for purposes of subsection (b)(6). state.—In a case in which three or more firearms were both possessed and trafficked. during the course of a burglary.e.2 (Definitions of Terms Used in Section 4B1. and (ii) in the case of a drug trafficking offense in which a firearm is found in close proximity to drugs. drug-manufacturing materials. counseled.S. (C) Upward Departure Provision.1).3 (Relevant Conduct). an upward departure may be warranted. work release. respectively. application of subsections (b)(6) and (c)(1) is warranted because the presence of the firearm has the potential of facilitating another felony offense or another offense. or a misdemeanor crime of domestic violence. another felony offense or another offense. apply both subsections (b)(1) and (b)(5). finds and takes a firearm. "Misdemeanor crime of domestic violence" has the meaning given that term in 18 U.—Subsections (b)(6) and (c)(1) apply if the firearm or ammunition facilitated. or drug paraphernalia. a controlled substance offense. Definitions.— (A) In General. supervised release. or escape status. or a conviction obtained. "In Connection With". or had the potential of facilitating. means any federal.—Subsections (b)(6) and (c)(1) apply (i) in a case in which a defendant who. induced. parole.1 (B) Definitions. consistent with §1B1. or willfully caused. The term "defendant". In these cases. or (ii) at the time of the offense was under a criminal justice sentence. including probation. Interaction with Other Subsections. 2009 GUIDELINES MANUAL §2K2. § 921(a)(33)(A).C. Application When Other Offense is Burglary or Drug Offense. procured..—If the defendant trafficked substantially more than 25 firearms. limits the accountability of the defendant to the defendant’s own conduct and conduct that the defendant aided or abetted. imprisonment. "Crime of violence" and "controlled substance offense" have the meaning given those terms in §4B1.

—In a case in which the defendant used or possessed a firearm or explosive to facilitate another firearms or explosives offense (e. and 696). whether or not convicted of another crime. the guideline sentence is the term of imprisonment required by statute. 1993 (see Appendix C. Amended effective November 1. 1992 (see Appendix C. amendment 34). amended effective January 15.6 (Weapons and Dangerous Instrumentalities) may be warranted. 1995 (see Appendix C. amendments 679 and 680).1 effective November 1. 1989 (see Appendix C. November 1. 1987. effective November 1. amendment 374). (b) – 254 – . November 1. 1991 (see Appendix C. 1990 (see Appendix C. means any federal. or a conviction obtained. 1991 (see Appendix C. amendment 605). 1987. amendments 578 and 586). November 1. §2K2. amendment 189).g. 2004 (see Appendix C.1 GUIDELINES MANUAL November 1. November 1. Except as provided in subsection (c). 1989 (see Appendix C. 1987.§2K2. 2006 (see Appendix C. amendment 333). 2001 (see Appendix C. whether or not convicted of another crime. 1998 (see Appendix C. amendment 333). amendment 374). November 1. November 1. the guideline sentence is the minimum term of imprisonment required by statute. amendment 374). effective November 1. amendment 522). was convicted of violating section 844(h) of title 18. the defendant used or possessed a firearm to protect the delivery of an unlawful shipment of explosives).2 effective November 1. Use of Firearm.3. 2000 (see Appendix C. amendment 646). was deleted by consolidation with §2K2. Armor-Piercing Ammunition. November 1. United States Code. [Deleted] Historical Note: Section 2K2. regardless of whether a criminal charge was brought. state. 1989 (see Appendix C. United States Code.2 (Unlawful Trafficking and Other Prohibited Transactions Involving Firearms). was deleted by consolidation with §2K2. was deleted by consolidation with §2K2. 1997 (see Appendix C. amendment 707). Shipping or Transferring a Firearm or Ammunition With Intent to Commit Another Offense.1 effective November 1. Chapters Three (Adjustments) and Four (Criminal History and Criminal Livelihood) shall not apply to that count of conviction. amendment 189). [Deleted] Historical Note: Section 2K2. 2002 (see Appendix C. Chapters Three and Four shall not apply to that count of conviction. effective November 1..3 (Receiving. A former §2K2. Historical Note: Effective November 1.2. §2K2. amendments 686. §2K2. 2005 (see Appendix C. amendments 629-631).4. amendment 669). November 1. Transporting. November 1. if the defendant. or local offense. an upward departure under §5K2. amendments 568 and 575). November 1. or Explosive During or in Relation to Certain Crimes (a) If the defendant. amendment 189). was convicted of violating section 924(c) or section 929(a) of title 18. amendment 478). November 1. (D) Upward Departure Provision. amendment 471). 2007 (see Appendix C. for purposes of subsection (c)(1). amendment 189). November 1. November 1. 1989 (see Appendix C. November 1. 1991 (see Appendix C. and November 1. November 1. 2009 "Another offense". 1990 (see Appendix C. 691. 1988 (see Appendix C. other than the explosive or firearms possession or trafficking offense.3 (Prohibited Transactions in or Shipment of Firearms and Other Weapons). or With Knowledge that It Will Be Used in Committing Another Offense).

Special Instructions for Fines (1) Where there is a federal conviction for the underlying offense. A departure may be warranted. § 924(c) or § 929(a) is an upward departure from the guideline sentence. a sentence above the minimum term required by 18 U. Upward Departure Provision. (B) – 255 – .C. also requires a term of imprisonment imposed under this section to run consecutively to any other term of imprisonment.— (A) In General. §§ 844(h). and 4B1. not less than five years).1.S.C. § 844(h) is the term required by that statute.S. Application of Subsection (b). 929(a).C.g.1 (Acceptance of Responsibility). (d) Commentary Statutory Provisions: 18 U. Accordingly. United States Code.. § 924(c) or § 929(a). Except as provided in subsection (c). for example.November 1.S. is determined to be a career offender under §4B1.4 (c) If the defendant (1) was convicted of violating section 924(c) or section 929(a) of title 18. and (2) as a result of that conviction (alone or in addition to another offense of conviction). This guideline shall be used as a consolidated fine guideline for both the underlying offense and the conviction underlying this section.—In a case in which the guideline sentence is determined under subsection (b).C. Application of Subsection (a). § 924(c) or § 929(a) offense but is not determined to be a career offender under §4B1. Section 844(h) of title 18. to reflect the seriousness of the defendant’s criminal history in a case in which the defendant is convicted of an 18 U. provides a mandatory term of imprisonment of 10 years (or 20 years for the second or subsequent offense).C.S.S.1 (Career Offender). Application Notes: 1. United State Code. 2009 GUIDELINES MANUAL §2K2. in a case in which the defendant is convicted under 18 U. the guideline sentence is the minimum term required by the relevant statute. the guideline sentence shall be determined under §4B1. Each of 18 U. provide mandatory minimum terms of imprisonment (e.—Sections 924(c) and 929(a) of title 18.—Section 844(h) of title 18.1. United States Code.C. the fine guideline shall be the fine guideline that would have been applicable had there only been a conviction for the underlying offense.1(c).S. 2.2 (Definitions of Terms Used in Section 4B1. §§ 924(c) and 929(a) also requires that a term of imprisonment imposed under that section shall run consecutively to any other term of imprisonment. 924(c). 4B1. the guideline sentence for a defendant convicted under 18 U. United State Code. Except for §§3E1.1). Chapters Three and Four shall not apply to that count of conviction.

S. § 844(h).3 (Relevant Conduct). In a few cases in which the defendant is determined not to be a career offender.C. § 924(c). § 922(g). use.S. an upward departure may be warranted so that the conviction under 18 U. 4.C.S. § 844(h). § 929(a).C. If the explosive or weapon that was possessed.C.S. § 924(c) in connection with only one of the robberies. Weapon Enhancement.S. brandishing. or discharged in the course of the underlying offense also results in a conviction that would subject the defendant to an enhancement under §2K1. possessed a firearm different from the one for which the defendant was convicted under 18 U.S. used. the offense level for the underlying offense determined under the preceding paragraphs may result in a guideline range that. the enhancement under §2K2.C. if a defendant is convicted of two armed bank robberies. § 924(c) or § 929(a). and (B) as a result of that conviction (alone or in addition to another offense of conviction). but is convicted under 18 U. or § 929(a). § 924(c) or 18 U.C.e. § 844(h).C. or discharge of an explosive or firearm when determining the sentence for the underlying offense. § 844(h). § 924(c).S. when combined with the mandatory consecutive sentence under 18 U. or § 929(a) does not result in a decrease in the total punishment. A sentence under this guideline accounts for the conduct covered by these enhancements because of the relatedness of that conduct to the conduct that forms the basis for the conviction under 18 U. 2009 Application of Subsection (c). for example.S. the defendant possessed a firearm other than the one for which the defendant was convicted under 18 U.C.C.2 (Sentencing on Multiple Counts of Conviction). including any such enhancement that would apply based on conduct for which the defendant is accountable under §1B1. § 844(h).C. § 924(c). do not apply any specific offense characteristic for possession.S. For example.1(b)(6) would not apply.— If a sentence under this guideline is imposed in conjunction with a sentence for an underlying offense. An upward departure under this paragraph shall not exceed the maximum of the guideline range that would have resulted had there not been a count of conviction under 18 U. the guideline sentence shall be determined under §4B1.S. § 924(c).C. A sentence under this guideline accounts for any explosive or weapon enhancement for the underlying offense of conviction.4 3. brandished.S.. the guideline range that would have resulted if the enhancements for possession.C. as part of the jointly undertaken criminal activity.§2K2.1 (Career Offender).3(b)(3) (pertaining to possession of explosive material in connection with another felony offense) or §2K2. produces a total maximum penalty that is less than the maximum of the guideline range that would have resulted had there not been a count of conviction under 18 U. In such a case. the sentence shall be imposed according to the rules in subsection (e) of §5G1. if in addition to a conviction for an underlying offense of armed bank robbery.—In a case in which the defendant (A) was convicted of violating 18 U. § 924(c) conviction. In a case involving multiple counts. or § 929(a). § 924(c). GUIDELINES MANUAL November 1. the defendant was convicted of being a felon in possession under 18 U. or § 929(a) (i.1(c). or discharge of a firearm had been applied).S. a weapon enhancement would apply to the bank robbery which was not the basis for the 18 U. – 256 – . Do not apply any weapon enhancement in the guideline for the underlying offense. However. § 924(c). if (A) a co-defendant. is determined to be a career offender under §4B1. or (B) in an ongoing drug trafficking offense.1(b)(6) (pertaining to possession of any firearm or ammunition in connection with another felony offense). do not apply that enhancement. use.

shall apply. amendments 598. 2009 GUIDELINES MANUAL §2K2. Terms of Supervised Release. any specific offense characteristic for explosive or firearm discharge. provides a mandatory term of imprisonment. United States Code. Such offenses are excluded from application of those chapters because the guideline sentence for each offense is determined only by the relevant statute. Amended effective November 1. other than §§4B1. § 3571.1 (Imposition of a Term of Supervised Release). To avoid double counting. § 924(c). § 844(h). as provided in §4B1.1 (Acceptance of Responsibility) may apply. Possession of Firearm or Dangerous Weapon in Federal Facility. 1990 (see Appendix C. 1987. brandishing. and (B) no other adjustments in Chapter Three and no provisions of Chapter Four. 1991 (see Appendix C. November 1. and 600). amendment 642).5 5. Where there is also a conviction for the underlying offense.C.S. 7. 2000 (see Appendix C. amendment 332). 6. 599. provide mandatory minimum terms of imprisonment. This is required because the offense level for the underlying offense may be reduced when there is also a conviction under 18 U. use.2.— Subsection (d) sets forth special provisions concerning the imposition of fines. United States Code. or possession is not applied in respect to such underlying offense.2. or – 257 – . amendment 190). § 844(h). November 1.1 and 4B1. Chapters Three and Four. amendment 696). 2002 (see Appendix C.November 1. Fines. November 1. November 1. brandishing. See §§3D1.— Imposition of a term of supervised release is governed by the provisions of §5D1. Background: Section 844(h) of title 18. Historical Note: Effective November 1. A sentence imposed pursuant to any of these statutes must be imposed to run consecutively to any other term of imprisonment. 2006 (see Appendix C.S. do not apply Chapter Three (Adjustments) and Chapter Four (Criminal History and Criminal Livelihood) to any offense sentenced under this guideline.1(c).—Except for those cases covered by subsection (c). § 924(c). amendment 405). Sections 924(c) and 929(a) of title 18.1 (Procedure for Determining Offense Level on Multiple Counts) and 5G1. The Commission has not established a fine guideline range for the unusual case in which there is no conviction for the underlying offense. §2K2. amendments 481 and 489).5. although a fine is authorized under 18 U. 1989 (see Appendix C. 1993 (see Appendix C. when a sentence under this section is imposed in conjunction with a sentence for an underlying offense.C. November 1. Possession or Discharge of Firearm in School Zone (a) (b) Base Offense Level: 6 Specific Offense Characteristic (1) If -(A) the defendant unlawfully possessed or caused any firearm or dangerous weapon to be present in a federal court facility. or § 929(a).C. November 1. or § 929(a) in that any specific offense characteristic for possession. In determining the guideline sentence for those cases covered by subsection (c): (A) the adjustment in §3E1. use. a consolidated fine guideline is determined by the offense level that would have applied to the underlying offense absent a conviction under 18 U. or discharge of a firearm is not applied (see Application Note 4).S.

attorney conference rooms. or Conspiracy) in respect to that other offense if the resulting offense level is greater than that determined above. if the guideline range is 30-37 months and the court determines "total punishment" of 36 months is appropriate.C.C. § 922(q) would satisfy this requirement.S. See 18 U. (c) Cross Reference (1) If the defendant used or possessed any firearm or dangerous weapon in connection with the commission or attempted commission of another offense. (B) Commentary Statutory Provisions: 18 U. – 258 – . Solicitation. and the defendant is convicted both of the underlying offense and 18 U. In order to comply with the statute. prisoner holding cells. and the United States marshal.C.1 (Application Instructions). § 930(f)(3).S. § 922(q). the most analogous offense guideline from Chapter Two.S.C.S. Subpart 1 (Homicide). For example. 2. apply -(A) §2X1. a sentence of 30 months for the underlying offense. 930. probation and parole offices. judges’ chambers.C. when the guideline range is based on the underlying offense.§2K2. if the resulting offense level is greater than that determined above.C. Application Notes: 1. §§ 922(q). witness rooms. 2009 the defendant unlawfully possessed or caused any firearm to be present in a school zone. offices and parking facilities of the court clerks. A sentence of imprisonment under 18 U. 40 U. Part A. 3.S. the United States attorney.S.C. increase by 2 levels. § 5104(e)(1).C. § 922(q) must run consecutively to any sentence of imprisonment imposed for any other offense. "Federal court facility" includes the courtroom.S. the court should apportion the sentence between the count for the underlying offense and the count under 18 U. jury deliberation rooms. § 922(q). and adjoining corridors and parking facilities of any court of the United States.1 (Attempt.5 (B) GUIDELINES MANUAL November 1. or possessed or transferred a firearm or dangerous weapon with knowledge or intent that it would be used or possessed in connection with another offense. plus 6 months under 18 U. "School zone" is defined at 18 U. "Dangerous weapon" and "firearm" are defined in the Commentary to §1B1. or if death resulted. § 922(q).S.

state. Application Notes: 1. increase by 4 levels.S. or local) punishable by imprisonment for a term exceeding one year.C. amendment 191). for purposes of subsection (b)(1). in a federal facility. discharged. or otherwise used.5. 1989 (see Appendix C. subsection (b)(1) would not apply if the body armor was found in the trunk of a car but was not being actively used as protection. 2009 GUIDELINES MANUAL §2K2.—If subsection (b)(1) applies.—For purposes of subsection (b)(1). Inapplicability of §3B1. or Owning Body Armor by Violent Felons (a) (b) Base Offense Level: 10 Specific Offense Characteristic (1) If the defendant used the body armor in connection with another felony offense. § 931.5 (Use of Body Armor in Drug Trafficking Crimes and Crimes of Violence). or school zone. (B) (C) 2. or (ii) used as a means of bartering. procured. Application of Subsection (b)(1). November 1.—If subsection (b)(1) applies (because the defendant used the body armor in connection with another felony offense) and the instant offense of conviction 3. counseled.6 4. Historical Note: Effective November 1. do not apply the adjustment in §3B1. commanded.3 (Relevant Conduct).November 1. regardless of whether a criminal charge was brought. 1991 (see Appendix C.—For purposes of subsection (b)(1). induced. and the cross reference from subsection (c)(1) does not apply. Where the firearm was brandished. the term "defendant". 2003 (see Appendix C. Meaning of "Felony Offense". Amended effective November 1.— (A) Meaning of "Defendant". Subsection (b)(1) does not apply if the body armor was merely possessed. Meaning of "Used". an upward departure may be warranted. or willfully caused. amendment 661). or a conviction obtained. – 259 – . limits the accountability of the defendant to the defendant’s own conduct and conduct that the defendant aided or abetted. amendment 374).6. "used" means the body armor was (i) actively employed in a manner to protect the person from gunfire.—Consistent with §1B1. §2K2. For example. "felony offense" means any offense (federal. Grouping of Multiple Counts. Purchasing. Commentary Statutory Provision: 18 U. Possessing. federal court facility.

1. Solicitation. Subpart 1 (Homicide).2. apply §2X1. apply the most analogous offense guideline from Chapter Two. 1987. Amended effective November 1.§2K2. MAILING INJURIOUS ARTICLES Historical Note: Effective November 1.2 effective November 1. Historical Note: Effective November 1.C. (2) Commentary Statutory Provision: 18 U. effective November 1. [Deleted] Historical Note: Section 2K3. or If death resulted. 1993 (see Appendix C.1 (Unlawfully Transporting Hazardous Materials in Commerce). amendment 670). Feloniously Mailing Injurious Articles (a) Base Offense Level (Apply the greater): (1) If the offense was committed with intent (A) to kill or injure any person. the counts of conviction for the 18 U. 2004 (see Appendix C.S. 1987. Background: This guideline applies only to the felony provisions of 18 U. § 1716. 2009 includes a count of conviction for that other felony offense.C. was deleted by consolidation with §2Q1. Part A. § 931 offense and that other felony offense shall be grouped pursuant to subsection (c) of §3D1. 1993 (see Appendix C.6 GUIDELINES MANUAL November 1. Historical Note: Effective November 1. 1990 (see Appendix C. The Commission has not promulgated a guideline for the misdemeanor provisions of this statute.1 (Attempt.C. or Conspiracy) in respect to the intended offense.S. §2K3. or (B) to injure the mails or other property. §2K3. amendment 334). amendment 481). * * * * * 3. – 260 – . amendment 481). § 1716 (felony provisions only).S.2 (Groups of Closely Related Counts).

November 1, 2009

GUIDELINES MANUAL

§2L1.1

PART L - OFFENSES INVOLVING IMMIGRATION, NATURALIZATION, AND PASSPORTS

1.

IMMIGRATION

§2L1.1.

Smuggling, Transporting, or Harboring an Unlawful Alien (a) Base Offense Level: (1) 25, if the defendant was convicted under 8 U.S.C. § 1327 of a violation involving an alien who was inadmissible under 8 U.S.C. § 1182(a)(3); 23, if the defendant was convicted under 8 U.S.C. § 1327 of a violation involving an alien who previously was deported after a conviction for an aggravated felony; or 12, otherwise.

(2)

(3) (b)

Specific Offense Characteristics (1) If (A) the offense was committed other than for profit, or the offense involved the smuggling, transporting, or harboring only of the defendant’s spouse or child (or both the defendant’s spouse and child), and (B) the base offense level is determined under subsection (a)(3), decrease by 3 levels. 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 (A) (B) (C) (3) 6-24 25-99 100 or more

(2)

Increase in Level add 3 add 6 add 9.

If the defendant committed any part of the instant offense after sustaining (A) a conviction for a felony immigration and naturalization offense, increase by 2 levels; or (B) two (or more) convictions for felony immigration and naturalization offenses, each such conviction arising out of a separate prosecution, increase by 4 levels. If the defendant smuggled, transported, or harbored a minor who was unaccompanied by the minor’s parent or grandparent, increase by 2 levels.

(4)

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§2L1.1
(5)

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November 1, 2009

(Apply the Greatest): (A) If a firearm was discharged, increase by 6 levels, but if the resulting offense level is less than level 22, increase to level 22. 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, increase to level 20. If a dangerous weapon (including a firearm) was possessed, increase by 2 levels, but if the resulting offense level is less than level 18, increase to level 18.

(B)

(C)

(6)

If the offense involved intentionally or 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, increase to level 18. If any person died or sustained bodily injury, increase the offense level according to the seriousness of the injury: Death or Degree of Injury (A) (B) (C) (D) Bodily Injury Serious Bodily Injury Permanent or Life-Threatening Bodily Injury Death Increase in Level add 2 levels add 4 levels add 6 levels add 10 levels.

(7)

(8)

(Apply the greater): (A) If an alien was involuntarily detained through coercion or threat, or in connection with a demand for payment, (i) after the alien was smuggled into the United States; or (ii) while the alien was transported or harbored in the United States, increase by 2 levels. If the resulting offense level is less than level 18, increase to level 18. If (i) the defendant was convicted of alien harboring, (ii) the alien harboring was for the purpose of prostitution, and (iii) the defendant receives an adjustment under §3B1.1 (Aggravating Role), increase by 2 levels, but if the alien engaging in the prostitution had not attained the age of 18 years, increase by 6 levels.

(B)

(9)

If the defendant was convicted under 8 U.S.C. § 1324(a)(4), increase by 2 levels.

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GUIDELINES MANUAL

§2L1.1

(c) (1)

Cross Reference If death resulted, apply the appropriate homicide guideline from Chapter Two, Part A, Subpart 1, if the resulting offense level is greater than that determined under this guideline.

Commentary Statutory Provisions: 8 U.S.C. §§ 1324(a), 1327. For additional statutory provision(s), see Appendix A (Statutory Index). Application Notes: 1. Definitions.—For purposes of this guideline: "The offense was committed other than for profit" means that there was no payment or expectation of payment for the smuggling, transporting, or harboring of any of the unlawful aliens. "Number of unlawful aliens smuggled, transported, or harbored" does not include the defendant. "Aggravated felony" is defined in the Commentary to §2L1.2 (Unlawfully Entering or Remaining in the United States). "Child" has the meaning set forth in section 101(b)(1) of the Immigration and Nationality Act (8 U.S.C. § 1101(b)(1)). "Spouse" has the meaning set forth in 101(a)(35) of the Immigration and Nationality Act (8 U.S.C. § 1101(a)(35)). "Immigration and naturalization offense" means any offense covered by Chapter Two, Part L. "Minor" means an individual who had not attained the age of 16 years. "Parent" means (A) a natural mother or father; (B) a stepmother or stepfather; or (C) an adoptive mother or father. 2. Interaction with §3B1.1.—For the purposes of §3B1.1 (Aggravating Role), the aliens smuggled, transported, or harbored are not considered participants unless they actively assisted in the smuggling, transporting, or harboring of others. In large scale smuggling, transporting, or harboring cases, an additional adjustment from §3B1.1 typically will apply. Upward Departure Provisions.—An upward departure may be warranted in any of the following cases: (A) The defendant smuggled, transported, or harbored an alien knowing that the alien

3.

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§2L1.1

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November 1, 2009

intended to enter the United States to engage in subversive activity, drug trafficking, or other serious criminal behavior. (B) The defendant smuggled, transported, or harbored an alien the defendant knew was inadmissible for reasons of security and related grounds, as set forth under 8 U.S.C. § 1182(a)(3). The offense involved substantially more than 100 aliens.

(C) 4.

Prior Convictions Under Subsection (b)(3).—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). Application of Subsection (b)(6).—Reckless conduct to which the adjustment from subsection (b)(6) applies includes a wide variety of conduct (e.g., 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 subsection (b)(6) applies solely on the basis of conduct related to fleeing from a law enforcement officer, do not apply an adjustment from §3C1.2 (Reckless Endangerment During Flight). Additionally, do not apply the adjustment in subsection (b)(6) if the only reckless conduct that created a substantial risk of death or serious bodily injury is conduct for which the defendant received an enhancement under subsection (b)(5). Inapplicability of §3A1.3.—If an enhancement under subsection (b)(8)(A) applies, do not apply §3A1.3 (Restraint of Victim).

5.

6.

Background: This section includes the most serious immigration offenses covered under the Immigration Reform and Control Act of 1986.
Historical Note: Effective November 1, 1987. Amended effective January 15, 1988 (see Appendix C, amendments 35, 36, and 37); November 1, 1989 (see Appendix C, amendment 192); November 1, 1990 (see Appendix C, amendment 335); November 1, 1991 (see Appendix C, amendment 375); November 1, 1992 (see Appendix C, amendment 450); May 1, 1997 (see Appendix C, amendment 543); November 1, 1997 (see Appendix C, amendment 561); November 1, 2006 (see Appendix C, amendments 686 and 692); November 1, 2007 (see Appendix C, amendment 702); November 1, 2009 (see Appendix C, amendment 730).

§2L1.2.

Unlawfully Entering or Remaining in the United States (a) (b) Base Offense Level: 8 Specific Offense Characteristic (1) Apply the Greatest: If the defendant previously was deported, or unlawfully remained in the United States, after— (A) a conviction for a felony that is (i) a drug trafficking offense for which the sentence imposed exceeded 13 months; (ii) a crime of

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GUIDELINES MANUAL

§2L1.2

violence; (iii) a firearms offense; (iv) a child pornography offense; (v) a national security or terrorism offense; (vi) a human trafficking offense; or (vii) an alien smuggling offense, increase by 16 levels; (B) a conviction for a felony drug trafficking offense for which the sentence imposed was 13 months or less, increase by 12 levels; a conviction for an aggravated felony, increase by 8 levels; a conviction for any other felony, increase by 4 levels; or three or more convictions for misdemeanors that are crimes of violence or drug trafficking offenses, increase by 4 levels.

(C) (D) (E)

Commentary Statutory Provisions: 8 U.S.C. § 1325(a) (second or subsequent offense only), 8 U.S.C. § 1326. For additional statutory provision(s), see Appendix A (Statutory Index). Application Notes: 1. Application of Subsection (b)(1).— (A) In General.—For purposes of subsection (b)(1): (i) A defendant shall be considered to be deported after a conviction if the defendant has been removed or has departed the United States while an order of exclusion, deportation, or removal was outstanding. A defendant shall be considered to be deported after a conviction if the deportation was subsequent to the conviction, regardless of whether the deportation was in response to the conviction. A defendant shall be considered to have unlawfully remained in the United States if the defendant remained in the United States following a removal order issued after a conviction, regardless of whether the removal order was in response to the conviction. Subsection (b)(1) does not apply to a conviction for an offense committed before the defendant was eighteen years of age unless such conviction is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted.

(ii)

(iii)

(iv)

(B)

Definitions.—For purposes of subsection (b)(1): (i) "Alien smuggling offense" has the meaning given that term in section

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§2L1.2

GUIDELINES MANUAL

November 1, 2009

101(a)(43)(N) of the § 1101(a)(43)(N)). (ii)

Immigration

and

Nationality

Act

(8

U.S.C.

"Child pornography offense" means (I) an offense described in 18 U.S.C. § 2251, § 2251A, § 2252, § 2252A, or § 2260; or (II) an offense under state or local law consisting of conduct that would have been an offense under any such section if the offense had occurred within the special maritime and territorial jurisdiction of the United States.

(iii)

"Crime of violence" means any of the following offenses under federal, state, or local law: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced), statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another. "Drug trafficking offense" means an offense under federal, state, or local law that prohibits the manufacture, import, export, distribution, or dispensing of, or offer to sell a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense. "Firearms offense" means any of the following: (I) An offense under federal, state, or local law that prohibits the importation, distribution, transportation, or trafficking of a firearm described in 18 U.S.C. § 921, or of an explosive material as defined in 18 U.S.C. § 841(c). An offense under federal, state, or local law that prohibits the possession of a firearm described in 26 U.S.C. § 5845(a), or of an explosive material as defined in 18 U.S.C. § 841(c). A violation of 18 U.S.C. § 844(h). A violation of 18 U.S.C. § 924(c). A violation of 18 U.S.C. § 929(a). An offense under state or local law consisting of conduct that would have been an offense under subdivision (III), (IV), or (V) if the offense had occurred within the special maritime and territorial jurisdiction of the United States.

(iv)

(v)

(II)

(III) (IV) (V) (VI)

(vi)

"Human trafficking offense" means (I) any offense described in 18 U.S.C. § 1581, § 1582, § 1583, § 1584, § 1585, § 1588, § 1589, § 1590, or § 1591; or (II) an
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November 1, 2009

GUIDELINES MANUAL

§2L1.2

offense under state or local law consisting of conduct that would have been an offense under any such section if the offense had occurred within the special maritime and territorial jurisdiction of the United States. (vii) "Sentence imposed" has the meaning given the term "sentence of imprisonment" in Application Note 2 and subsection (b) of §4A1.2 (Definitions and Instructions for Computing Criminal History), without regard to the date of the conviction. The length of the sentence imposed includes any term of imprisonment given upon revocation of probation, parole, or supervised release. "Terrorism offense" means any offense involving, or intending to promote, a "Federal crime of terrorism", as that term is defined in 18 U.S.C. § 2332b(g)(5).

(viii)

2.

Definition of "Felony".—For purposes of subsection (b)(1)(A), (B), and (D), "felony" means any federal, state, or local offense punishable by imprisonment for a term exceeding one year. Application of Subsection (b)(1)(C).— (A) Definitions.—For purposes of subsection (b)(1)(C), "aggravated felony" has the meaning given that term in section 101(a)(43) of the Immigration and Nationality Act (8 U.S.C. § 1101(a)(43)), without regard to the date of conviction for the aggravated felony. In General.—The offense level shall be increased under subsection (b)(1)(C) for any aggravated felony (as defined in subdivision (A)), with respect to which the offense level is not increased under subsections (b)(1)(A) or (B).

3.

(B)

4.

Application of Subsection (b)(1)(E).—For purposes of subsection (b)(1)(E): (A) "Misdemeanor" means any federal, state, or local offense punishable by a term of imprisonment of one year or less. "Three or more convictions" means at least three convictions for offenses that are not counted as a single sentence pursuant to subsection (a)(2) of §4A1.2 (Definitions and Instructions for Computing Criminal History).

(B)

5.

Aiding and Abetting, Conspiracies, and Attempts.—Prior convictions of offenses counted under subsection (b)(1) include the offenses of aiding and abetting, conspiring, and attempting, to commit such offenses. Computation of Criminal History Points.—A conviction taken into account under subsection (b)(1) is not excluded from consideration of whether that conviction receives criminal history points pursuant to Chapter Four, Part A (Criminal History). Departure Consideration.—There may be cases in which the applicable offense level substantially overstates or understates the seriousness of a prior conviction. In such a case, a departure may be warranted. Examples: (A) In a case in which subsection (b)(1)(A) or (b)(1)(B) does not apply and the defendant has a prior conviction for possessing or transporting a quantity of a controlled substance that exceeds a quantity consistent with
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6.

7.

§2L1.2

GUIDELINES MANUAL

November 1, 2009

personal use, an upward departure may be warranted. (B) In a case in which subsection (b)(1)(A) applies, and the prior conviction does not meet the definition of aggravated felony at 8 U.S.C. § 1101(a)(43), a downward departure may be warranted.
Historical Note: Effective November 1, 1987. Amended effective January 15, 1988 (see Appendix C, amendment 38); November 1, 1989 (see Appendix C, amendment 193); November 1, 1991 (see Appendix C, amendment 375); November 1, 1995 (see Appendix C, amendment 523); November 1, 1997 (see Appendix C, amendment 562); November 1, 2001 (see Appendix C, amendment 632); November 1, 2002 (see Appendix C, amendment 637); November 1, 2003 (see Appendix C, amendment 658); November 1, 2007 (see Appendix C, amendment 709); November 1, 2008 (see Appendix C, amendment 722).

§2L1.3. [Deleted]
Historical Note: Section 2L1.3 (Engaging in a Pattern of Unlawful Employment of Aliens), effective November 1, 1987, was deleted effective November 1, 1989 (see Appendix C, amendment 194).

* * * * *

2.

NATURALIZATION AND PASSPORTS

§2L2.1.

Trafficking in a Document Relating to Naturalization, Citizenship, or Legal Resident Status, or a United States Passport; False Statement in Respect to the Citizenship or Immigration Status of Another; Fraudulent Marriage to Assist Alien to Evade Immigration Law (a) (b) Base Offense Level: 11 Specific Offense Characteristics (1) If the offense was committed other than for profit, or the offense involved the smuggling, transporting, or harboring only of the defendant’s spouse or child (or both the defendant’s spouse and child), decrease by 3 levels. If the offense involved six or more documents or passports, increase as follows: Number of Documents/Passports (A) (B) (C) (3) 6-24 25-99 100 or more

(2)

Increase in Level add 3 add 6 add 9.

If the defendant knew, believed, or had reason to believe that a passport or visa was to be used to facilitate the commission of a felony offense, other than an offense involving violation of the immigration laws, increase by 4 levels.

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November 1, 2009

GUIDELINES MANUAL

§2L2.1

(4)

If the defendant committed any part of the instant offense after sustaining (A) a conviction for a felony immigration and naturalization offense, increase by 2 levels; or (B) two (or more) convictions for felony immigration and naturalization offenses, each such conviction arising out of a separate prosecution, increase by 4 levels. If the defendant fraudulently obtained or used (A) a United States passport, increase by 4 levels; or (B) a foreign passport, increase by 2 levels.

(5)

Commentary Statutory Provisions: 8 U.S.C. §§ 1160(b)(7)(A), 1185(a)(3), (4), 1325(b), (c); 18 U.S.C. §§ 1015, 1028, 1425-1427, 1542, 1544, 1546. For additional statutory provision(s), see Appendix A (Statutory Index). Application Notes: 1. For purposes of this guideline— "The offense was committed other than for profit" means that there was no payment or expectation of payment for the smuggling, transporting, or harboring of any of the unlawful aliens. "Immigration and naturalization offense" means any offense covered by Chapter Two, Part L. "Child" has the meaning set forth in section 101(b)(1) of the Immigration and Nationality Act (8 U.S.C. § 1101(b)(1)). "Spouse" has the meaning set forth in section 101(a)(35) of the Immigration and Nationality Act (8 U.S.C. § 1101(a)(35)). 2. Where it is established that multiple documents are part of a set of documents intended for use by a single person, treat the set as one document. Subsection (b)(3) provides an enhancement if the defendant knew, believed, or had reason to believe that a passport or visa was to be used to facilitate the commission of a felony offense, other than an offense involving violation of the immigration laws. If the defendant knew, believed, or had reason to believe that the felony offense to be committed was of an especially serious type, an upward departure may be warranted. 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.

4.

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§2L2.1
5.

GUIDELINES MANUAL

November 1, 2009

If the offense involved substantially more than 100 documents, an upward departure may be warranted.

Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendment 195); November 1, 1992 (see Appendix C, amendment 450); November 1, 1993 (see Appendix C, amendment 481); November 1, 1995 (see Appendix C, amendment 524); May 1, 1997 (see Appendix C, amendment 544); November 1, 1997 (see Appendix C, amendment 563); November 1, 2006 (see Appendix C, amendment 691).

§2L2.2.

Fraudulently Acquiring Documents Relating to Naturalization, Citizenship, or Legal Resident Status for Own Use; False Personation or Fraudulent Marriage by Alien to Evade Immigration Law; Fraudulently Acquiring or Improperly Using a United States Passport (a) (b) Base Offense Level: 8 Specific Offense Characteristics (1) If the defendant is an unlawful alien who has been deported (voluntarily or involuntarily) on one or more occasions prior to the instant offense, increase by 2 levels. If the defendant committed any part of the instant offense after sustaining (A) a conviction for a felony immigration and naturalization offense, increase by 2 levels; or (B) two (or more) convictions for felony immigration and naturalization offenses, each such conviction arising out of a separate prosecution, increase by 4 levels. If the defendant fraudulently obtained or used (A) a United States passport, increase by 4 levels; or (B) a foreign passport, increase by 2 levels.

(2)

(3)

(c)

Cross Reference (1) If the defendant used a passport or visa in the commission or attempted commission of a felony offense, other than an offense involving violation of the immigration laws, apply -(A) §2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that felony offense, if the resulting offense level is greater than that determined above; or if death resulted, the most analogous offense guideline from Chapter Two, Part A, Subpart 1 (Homicide), if the resulting offense level is greater than that determined above.

(B)

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November 1, 2009

GUIDELINES MANUAL

§2L2.4

Commentary Statutory Provisions: 8 U.S.C. §§ 1160(b)(7)(A), 1185(a)(3), (5), 1325(b), (c); 18 U.S.C. §§ 911, 1015, 1028, 1423-1426, 1542-1544, 1546. Application Notes: 1. Definition.—For purposes of this guideline, "immigration and naturalization offense" means any offense covered by Chapter Two, Part L. Application of Subsection (b)(2).— Prior felony conviction(s) resulting in an adjustment under subsection (b)(2) are also counted for purposes of determining criminal history points pursuant to Chapter Four, Part A (Criminal History). Application of Subsection (b)(3).—The term "used" is to be construed broadly and includes the attempted renewal of previously-issued passports. Multiple Counts.—For the purposes of Chapter Three, Part D (Multiple Counts), a count of conviction for unlawfully entering or remaining in the United States covered by §2L1.2 (Unlawfully Entering or Remaining in the United States) arising from the same course of conduct as the count of conviction covered by this guideline shall be considered a closely related count to the count of conviction covered by this guideline, and therefore is to be grouped with the count of conviction covered by this guideline. Upward Departure Provision.—If the defendant fraudulently obtained or used a United States passport for the purpose of entering the United States to engage in terrorist activity, an upward departure may be warranted. See Application Note 4 of the Commentary to §3A1.4 (Terrorism).

2.

3.

4.

5.

Historical Note: Effective November 1, 1987. Amended effective January 15, 1988 (see Appendix C, amendment 39); November 1, 1989 (see Appendix C, amendment 196); November 1, 1992 (see Appendix C, amendment 450); November 1, 1993 (see Appendix C, amendment 481); November 1, 1995 (see Appendix C, amendment 524); May 1, 1997 (see Appendix C, amendment 544); November 1, 1997 (see Appendix C, amendment 563); November 1, 2004 (see Appendix C, amendment 671); November 1, 2006 (see Appendix C, amendment 691).

§2L2.3. [Deleted]
Historical Note: Section 2L2.3 (Trafficking in a United States Passport), effective November 1, 1987, amended effective November 1, 1989 (see Appendix C, amendment 197) and November 1, 1992 (see Appendix C, amendment 450), was deleted by consolidation with §2L2.1 effective November 1, 1993 (see Appendix C, amendment 481).

§2L2.4. [Deleted]
Historical Note: Section 2L2.4 (Fraudulently Acquiring or Improperly Using a United States Passport), effective November 1, 1987, amended effective January 15, 1988 (see Appendix C, amendment 40) and November 1, 1989 (see Appendix C, amendment 198), was deleted by consolidation with §2L2.2 effective November 1, 1993 (see Appendix C, amendment 481).

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– 272 – .C. 1987. GUIDELINES MANUAL November 1. § 1428.5. Historical Note: Effective November 1. 2009 Failure to Surrender Canceled Naturalization Certificate (a) Base Offense Level: 6 Commentary Statutory Provision: 18 U.S.§2L2.5 §2L2.

2154. Destruction of.1. 1987. TREASON §2M1. 49 U.1. 42 U. Premises. § 60123(b).C. 1.C. § 2381. 1987. otherwise. * * * * * 2.S. War Material.C. 2009 GUIDELINES MANUAL §2M2. Treason (a) Base Offense Level: (1) (2) 43. or Utilities (a) Base Offense Level: 32 Commentary Statutory Provisions: 18 U. – 273 – .S.C. § 2284.S. The guideline contemplates imposition of the maximum penalty in the most serious cases. if the conduct is tantamount to waging war against the United States. SABOTAGE §2M2.November 1.S. 2001 (see Appendix C.OFFENSES INVOLVING NATIONAL DEFENSE AND WEAPONS OF MASS DESTRUCTION Historical Note: Effective November 1. with reference made to the most analogous offense guideline in lesser cases. amendment 633). Amended effective November 1. the offense level applicable to the most analogous offense. or Production of Defective.1 PART M . Historical Note: Effective November 1. Commentary Statutory Provision: 18 U. including many of the more specific offenses in this Part. § 2153. Background: Treason is a rarely prosecuted offense that could encompass a relatively broad range of conduct.

S. amendment 637). effective November 1.§2M2. 1987. § 2284 are included in this section where the defendant was convicted of acting with intent to injure the United States or aid a foreign nation. 2156. 1987.2. 1993 (see Appendix C. effective November 1.1 Application Note: 1.1 effective November 1. amendment 481). Premises. 1987.C. 1993 (see Appendix C. §2M2. 2009 Violations of 42 U.C. amendment 481).3 effective November 1. amendment 637).S. Premises. 1993 (see Appendix C. 2002 (see Appendix C. Amended effective November 1. [Deleted] Historical Note: Section 2M2. amendment 481).S. or Utilities).S. November 1.4.C.4 (Production of Defective National Defense Material. Amended effective November 1. or Utilities). GUIDELINES MANUAL November 1. § 2284. was deleted by consolidation with §2M2. § 2284 not included in §2M2. Violations of 42 U. November 1. 49 U. 1993 (see Appendix C. or Production of Defective.S. Destruction of. [Deleted] Historical Note: Section 2M2. National Defense Material.3.C. or Utilities (a) Base Offense Level: 26 Commentary Statutory Provisions: 18 U. § 60123(b). Gathering or Transmitting National Defense Information to Aid a Foreign Government (a) Base Offense Level: – 274 – .2 (Production of Defective War Material. 42 U.C. §2M2. Application Note: 1. was deleted by consolidation with §2M2. * * * * * 3. amendment 481). Historical Note: Effective November 1. ESPIONAGE AND RELATED OFFENSES §2M3.1. Historical Note: Effective November 1. 2002 (see Appendix C. §§ 2155. §2M2. 1987.1 are included in this section. Premises.

42 U. reflects the importance of the information to the national security. When revelation is likely to cause little or no harm. 2009 GUIDELINES MANUAL §2M3.C. See Commentary to §2M3. Part K (Departures). §§ 2274(a).2. if top secret information was gathered or transmitted. (b). otherwise.C. 2.S. §2M3. 3. Commentary Statutory Provisions: 18 U. For additional statutory provision(s). – 275 – . Application Notes: 1. § 794. see Appendix A (Statutory Index). "reasonably could be expected to cause exceptionally grave damage to the national security. and that the revelation will significantly and adversely affect security interests.C. 2275. Historical Note: Effective November 1. 1987. Application Notes: 1. Gathering National Defense Information (a) Base Offense Level: (1) (2) 35.S. (c). if top secret information was gathered. or 37. The court may depart from the guidelines upon representation by the President or his duly authorized designee that the imposition of a sanction other than authorized by the guideline is necessary to protect national security or further the objectives of the nation’s foreign policy.2 (1) (2) 42.November 1. or 30. This classification. (e). (b). "Top secret information" is information that. The Commission has set the base offense level in this subpart on the assumption that the information at issue bears a significant relation to the nation’s security. See Chapter Five. in turn. (d). §§ 793(a). otherwise.1. Background: Offense level distinctions in this subpart are generally based on the classification of the information gathered or transmitted. Commentary Statutory Provisions: 18 U. if disclosed." Executive Order 12356. 1030(a)(1). (g).S. a downward departure may be warranted.

§ 793(d) or (e). sketch.C. (g). § 793(d) or (e) for the willful transmission or communication of intangible information with reason to believe that it could be used to the injury of the United States or the advantage of a foreign nation. 1987.C.2 2. Disclosure of Classified Cryptographic Information. GUIDELINES MANUAL November 1. This section also covers statutes that proscribe the disclosure of classified information concerning cryptographic or communication intelligence to the detriment of the United States or for the benefit of a foreign government. amendment 481). 1993 (see Appendix C. model. writing. Commentary Statutory Provisions: 18 U.3. Historical Note: Effective November 1.S.S.S. 50 U. Unauthorized Disclosure to a Foreign Government or a Communist Organization of Classified Information by Government Employee. if top secret information. See Commentary to §2M3. §2M3. If the defendant was convicted of 18 U. otherwise. Amended effective November 1. Application Notes: 1. instrument. and the unauthorized receipt of classified information.C. Proof that the item was communicated with reason to believe that it could be used to the injury of the United States or the advantage of a foreign nation is required only where intangible information is communicated under 18 U. amendment 654). photographic negative. map. the unauthorized disclosure to a foreign government or a communist organization of classified information by a government employee. – 276 – . §2M3. 1987. Historical Note: Effective November 1.3 may apply. § 783(b). 2. appliance. Transmitting National Defense Information. Unauthorized Receipt of Classified Information (a) Base Offense Level: (1) (2) 29. Background: The statutes covered in this section proscribe willfully transmitting or communicating to a person not entitled to receive it a document. Background: The statutes covered in this section proscribe diverse forms of obtaining and transmitting national defense information with intent or reason to believe the information would injure the United States or be used to the advantage of a foreign government. § 793(d) or (e).1. blueprint. signal book. plan. or 24.3. 2003 (see Appendix C. code book.C.C. (c).2.S.§2M3. or note relating to the national defense. 798. (e). Amended effective November 1. photograph. 2009 If the defendant is convicted under 18 U. §§ 793(d). See Commentary to §2M3.S. apply §2M3.

C.C. Application Note: 1.November 1.S. amendment 481). Commentary Statutory Provision: 18 U. Application Note: 1. 1987.1.5. effective November 1. Tampering with Restricted Data Concerning Atomic Energy (a) Base Offense Level: 24 Commentary Statutory Provision: 42 U.4. – 277 – .3 effective November 1. if top secret information was lost.6 §2M3. See Commentary to §2M3.6 (Disclosure of Classified Cryptographic Information).1. 1987. [Deleted] Historical Note: Section 2M3. 1993 (see Appendix C.S. Historical Note: Effective November 1. otherwise. § 793(f). but rather the loss of classified information by the gross negligence of an employee of the federal government or a federal contractor. §2M3. Historical Note: Effective November 1. See Commentary to §2M3. Background: Offenses prosecuted under this statute generally do not involve subversive conduct on behalf of a foreign power. Losing National Defense Information (a) Base Offense Level: (1) (2) 18. 2009 GUIDELINES MANUAL §2M3. 1987. §2M3. § 2276. was deleted by consolidation with §2M3.6. or 13.

C.S. effective November 1. § 421 by an official who has or had authorized access to classified information identifying a covert agent than for a violation by an official with authorized access only to other classified information.S. or 25.1 (Other Offenses).S. § 421 by persons who have or previously had authorized access to classified information.§2M3. or having had. Historical Note: Effective November 1. 3. This guideline does not apply to violations of 50 U.S. and the court should impose a sentence that reflects such harm. See Commentary to §2M3.1.C. Application Notes: 1.8. Violations of 50 U.7 (Unauthorized Disclosure to Foreign Government or a Communist Organization of Classified Information by Government Employee).7. This guideline does not apply to violations of 50 U. including journalists. § 421 by defendants. 1993 (see Appendix C.S.C. This guideline applies only to violations of 50 U. authorized access to classified information. amendment 481).9. 1987. if the information was disclosed by a person with authorized access only to other classified information. (2) Commentary Statutory Provision: 50 U. Disclosure of Information Identifying a Covert Agent (a) Base Offense Level: (1) 30. §2M3. §2M3.S. A term of imprisonment imposed for a conviction under 50 U.8 (Receipt of Classified Information).C. § 421 by defendants who disclosed such information without having.3 effective November 1. 1993 (see Appendix C. [Deleted] GUIDELINES MANUAL November 1. Background: The alternative base offense levels reflect a statutory distinction by providing a greater base offense level for a violation of 50 U. who disclosed such information without having or having had authorized access to classified information. was deleted by consolidation with §2M3.C. § 421. was deleted by consolidation with §2M3. effective November 1. 2001 (see Appendix C.C. See §2X5.C.3 effective November 1. or who had authorized access to classified information identifying a covert agent. – 278 – .S. § 421 not covered by this guideline may vary in the degree of harm they inflict.7 §2M3. 1987. [Deleted] Historical Note: Section 2M3. 2009 Historical Note: Section 2M3. if the information was disclosed by a person with. amendment 636). amendment 481). 2. § 421 shall be imposed consecutively to any other term of imprisonment. Amended effective November 1. 1987.

1. §2M5. Historical Note: Effective November 1. Application Note: 1. Amended effective November 1. § 462. 1987. amendment 637). PROHIBITED FINANCIAL TRANSACTIONS AND EXPORTS.November 1. amendment 336). increase by 6 levels. Financial Transactions with Countries Supporting International Terrorism (a) Base Offense Level (Apply the greater): (1) 26.1. App. 1987.1 * * * * * 4. an upward departure may be warranted. biological. Commentary Statutory Provision: 50 U. AND PROVIDING MATERIAL SUPPORT TO DESIGNATED FOREIGN TERRORIST ORGANIZATIONS Historical Note: Effective November 1. Evasion of Export Controls.C. 2009 GUIDELINES MANUAL §2M5. Subsection (b)(1) does not distinguish between whether the offense was committed in peacetime or during time of war or armed conflict. Failure to Register and Evasion of Military Service (a) (b) Base Offense Level: 6 Specific Offense Characteristic (1) If the offense occurred at a time when persons were being inducted for compulsory military service. 2002 (see Appendix C. Amended effective November 1. * * * * * 5. if (A) national security controls or controls relating to the proliferation of nuclear. 1990 (see Appendix C. or chemical weapons or materials – 279 – . If the offense was committed when persons were being inducted for compulsory military service during time of war or armed conflict. EVASION OF MILITARY SERVICE §2M4.S.

3. §§ 2401-2420. a departure from the guidelines may be warranted. App. or Military Equipment or Services Without Required Validated Export License (a) Base Offense Level: (1) (2) 26. and any proceeds obtained directly or indirectly as a result of the violation. When national security controls are violated. 4.1 GUIDELINES MANUAL November 1.S. amendment 633). and the number of weapons did not exceed ten. and whether there were multiple occurrences. otherwise. Exportation of Arms. except as provided in subdivision (2) below.C.S.2. The maximum fine for individual defendants is $250. Amended effective November 1. in addition to any other sanction. the court may consider the degree to which the violation threatened a security interest of the United States. Munitions. App.C. Historical Note: Effective November 1. 50 U. Part K (Departures). For purposes of subsection (a)(1)(B). the maximum fine is five times the value of the exports involved or $1 million. 2001 (see Appendix C. security of. Application Notes: 1. See Chapter Five. 1987. §2M5. property used to export or attempt to export that was the subject of the violation. 2405). or (2) 14. or shotguns). if the offense involved only non-fully automatic small arms (rifles. or claim against: any goods or tangible items that were the subject of the violation. Where such factors are present in an extreme form. In determining the sentence within the applicable guideline range. Commentary Statutory Provisions: 18 U.S. 2009 were evaded. the extent of planning or sophistication.C. an upward departure may be warranted. the defendant is subject to forfeiture of any interest in.§2M5. amendment 637). – 280 – .000.S. In the case of corporations. or (B) the offense involved a financial transaction with a country supporting international terrorism. 2. whichever is greater. § 2410 contains provisions for criminal fines and forfeiture as well as civil penalties. "a country supporting international terrorism" means a country designated under section 6(j) of the Export Administration Act (50 U. the volume of commerce involved. In addition to the provisions for imprisonment.C. App. 14. 50 U. handguns. 2002 (see Appendix C. § 2332d. In the case of a violation during time of war or armed conflict. November 1.

or (E) funds or other material support or resources with the intent. or For a Terrorist Purpose (a) (b) Base Offense Level: 26 Specific Offense Characteristic (1) If the offense involved the provision of (A) dangerous weapons. §2M5. a downward departure may be warranted.November 1. Included in this list are such things as military aircraft.S. military and space electronics. The base offense level assumes that the offense conduct was harmful or had the potential to be harmful to a security or foreign policy interest of the United States. increase by 2 levels. and certain firearms. the extent of planning or sophistication. or reason to believe they are to be used to commit or assist in the commission of a violent act. (c) Cross References (1) If the offense resulted in death. November 1. the volume of commerce involved. or §2A1. amendment 633).2 (Second – 281 – . apply §2A1. Where such factors are present in an extreme form. Providing Material Support or Resources to Designated Foreign Terrorist Organizations or Specially Designated Global Terrorists.1 (First Degree Murder) if the death was caused intentionally or knowingly. Application Notes: 1. which is set out in 22 C. helicopters. 2. rockets. and whether there were multiple occurrences. In determining the sentence within the applicable guideline range. §§ 2778.1.C. artillery. 22 U. Part K (Departures). explosives. Historical Note: Effective November 1. 2009 GUIDELINES MANUAL §2M5. The items subject to control constitute the United States Munitions List. Part 121. (D) funds with the intent. or reason to believe such funds would be used to purchase any of the items described in subdivisions (A) through (C). In the unusual case where the offense conduct posed no such risk. to control exports of defense articles and defense services that he deems critical to a security or foreign policy interest of the United States. amendment 700). (C) explosives. knowledge.R. See Chapter Five. Amended effective November 1. 2007 (see Appendix C. In the case of a violation during time of war or armed conflict. § 2778.S. bombs. the court may consider the degree to which the violation threatened a security or foreign policy interest of the United States. vessels of war.C.3. Under 22 U.C.3 Commentary Statutory Provisions: 18 U. 1990 (see Appendix C. amendment 337). 2780.F. missiles. shells. the President is authorized. a departure from the guidelines may be warranted. knowledge. 1987.S. § 554. an upward departure may be warranted. November 1. through a licensing system administered by the Department of State. (B) firearms. 2001 (see Appendix C.

R. 2009 Degree Murder) otherwise. Biological. or delivery system.— (A) In General. Attempted Murder). Departure Provisions. "nuclear material". §§ 2283. if the resulting offense level is greater than that determined above. 2284.1 (Nuclear. and Chemical Weapons. 2. toxin. Definitions. the volume of the funds or other material support or resources involved.4 (Arson. "Explosives" has the meaning given that term in Application Note 1 of the Commentary to §2K1. Property Damage by Use of Explosives). Biological.C. 50 U. and "weapon of mass destruction" have the meaning given those terms in Application Note 1 of the Commentary to §2M6. §§ 1701. if the resulting offense level is greater than that determined above. "chemical weapon". 2339B. and whether there were multiple occurrences. apply §2M6. (C) a biological agent.C. (2) If the offense was tantamount to attempted murder. and Chemical Weapons. the extent of planning or sophistication. and "destructive device" have the meaning given those terms in Application Note 1 of the Commentary to §1B1. (B) a chemical weapon. 2339C(a)(1)(B).—For purposes of this guideline: "Biological agent". "Foreign terrorist organization" has the meaning given the term "terrorist organization" in 18 U. "toxin".C. § 594.513. or nuclear byproduct material. Application Notes: 1. (3) Commentary Statutory Provisions: 18 U.3 GUIDELINES MANUAL November 1.C.1 (Application Instructions).S. "nuclear byproduct material". the court may consider the degree to which the violation threatened a security interest of the United States.S.C. (c)(2)(B) (but only with respect to funds known or intended to have been provided or collected in violation of 18 U. § 2339C(a)(1)(B)). "firearm". If the offense involved the provision of (A) a nuclear weapon. § 2339B(g)(6). § 2339B(g)(4). nuclear material. if the resulting offense level is greater than that determined above.1 (Nuclear.—In determining the sentence within the applicable guideline range.S.F. "Material support or resources" has the meaning given that term in 18 U. and Other Weapons of Mass Destruction). "Dangerous weapon".S. or (D) a weapon of mass destruction.1 (Assault with Intent to Commit Murder. and Other Weapons of Mass Destruction). – 282 – . 1705. "Specially designated global terrorist" has the meaning given that term in 31 C.S.§2M5. apply §2A2.

nuclear material. (a)(3). 2007 (see Appendix C. increase by 2 levels. (B) War or Armed Conflict. 28. or (iv) a weapon of mass destruction that contains any agent. toxin. amendment 700).1 In a case in which such factors are present in an extreme form. amendment 637).C. a departure from the guidelines may be warranted. or nuclear byproduct material. and (B) the offense involved a threat to use. Amended effective November 1. Unlawful Activity Involving Nuclear Material.C. toxic chemical. BIOLOGICAL. a biological agent.—In the case of a violation during time of war or armed conflict. or Delivery Systems. and (a)(4) do not apply. and (B)(i) any victim died or sustained permanent or life-threatening bodily injury.S. increase by (2) – 283 – . if the offense was committed with intent (A) to injure the United States. 1987. (ii) a listed precursor or a listed toxic chemical. (iii) nuclear material or nuclear byproduct material. November 1. or delivery system.1. AND OTHER WEAPONS OF MASS DESTRUCTION Historical Note: Effective November 1. See Chapter Five. or otherwise involved (i) a select biological agent.S. or (B) to aid a foreign nation or a foreign terrorist organization. Attempt or Conspiracy (a) Base Offense Level (Apply the Greatest): (1) 42. § 175b. or a weapon of mass destruction. or Facilities. (2) (3) (4) (b) Specific Offense Characteristics (1) If (A) subsection (a)(2) or (a)(4)(A) applies. AND CHEMICAL WEAPONS AND MATERIALS. * * * * * 6. or Other Weapons of Mass Destruction. 2002 (see Appendix C. if (A) the defendant is convicted under 18 U. Amended effective November 1. NUCLEAR. Biological Agents. Part K (Departures). (ii). Chemical Weapons. 2009 GUIDELINES MANUAL §2M6. but (ii) did not involve any conduct evidencing an intent or ability to carry out the threat. Historical Note: Effective November 1. If (A) subsection (a)(2). amendment 633). amendment 655). an upward departure may be warranted. (a)(3). Weapons. §2M6. or (B) the offense (i) involved a threat to use a nuclear weapon. Toxins. or 20. 22. a chemical weapon. if subsections (a)(1). § 175(b). 2003 (see Appendix C. precursor. or (a)(4)(A) applies. or (iii). if the defendant is convicted under 18 U. or material referred to in subdivision (i).November 1. 2001 (see Appendix C.

2291.1 GUIDELINES MANUAL November 1.S. 175c.1 (Assault with Intent to Commit Murder. If the offense was tantamount to attempted murder. apply §2A1. 832. increase by 3 levels. 2332h. 2131. Application Notes: 1. increase by 2 levels. 842(p)(2) (only with respect to weapons of mass destruction as defined in 18 U.2 (Second Degree Murder) otherwise. if the resulting offense level is greater than that determined above. (3) If (A) subsection (a)(2). or (a)(4) applies. and (B) includes an organization designated by the Secretary of State as a – 284 – .C. Chapter Three.§2M6. or §2A1. decontaminate. or business functions or services. (a)(3).—For purposes of this guideline: "Biological agent" has the meaning given that term in 18 U. (2) (d) Special Instruction (1) If the defendant is convicted of a single count involving (A) conduct that resulted in the death or permanent. (a)(4).C. or (B) conduct tantamount to the attempted murder of more than one victim. and (D)). (a)(3). or (iii) the degree of injury is between that specified in subdivisions (i) and (ii). §§ 2077(b). For additional statutory provision(s). or otherwise respond to the offense. §§ 175. Definitions. "Chemical weapon" has the meaning given that term in 18 U.C. 229. (b)(2).S. Part D (Multiple Counts) shall be applied as if such conduct in respect to each victim had been contained in a separate count of conviction. if the resulting offense level is greater than that determined above. (c) Cross References (1) If the offense resulted in death. "Foreign terrorist organization" (A) means an organization that engages in terrorist activity that threatens the security of a national of the United States or the national security of the United States.S. (ii) any victim sustained serious bodily injury.1 (First Degree Murder) if the death was caused intentionally or knowingly. apply §2A2. § 178(1).S.C. Attempted Murder). 1992(a)(2). (C). see Appendix A (Statutory Index). 2283. life-threatening. Commentary Statutory Provisions: 18 U. 42 U. increase by 4 levels. 2122. and (B) the offense resulted in (i) substantial disruption of public.C. or (ii) a substantial expenditure of funds to clean up. 2009 4 levels. 175b. 831. § 229F(1). or serious bodily injury of more than one victim. governmental. § 2332a(c)(2)(B).S.

– 285 – . "Nuclear material" has the meaning given that term in 18 U. or (B) by the Secretary of Agriculture on the list established and maintained pursuant to section 212 of the Agricultural Bioterrorism Protection Act of 2002 (7 U.C. "Precursor" has the meaning given that term in 18 U. 2009 GUIDELINES MANUAL §2M6. In such a case.C. "Select biological agent" means a biological agent or toxin identified (A) by the Secretary of Health and Human Services on the select agent list established and maintained pursuant to section 351A of the Public Health Service Act (42 U.S.—Subsection (a)(4)(B) applies in cases that involved a threat to use a weapon. (C).S.S. See 18 U.C. In such a case. possession of the weapon.C. § 178(4). § 229F(8)(A). or material covered by this guideline and the possession of that weapon. and (D).S. Subsection (a)(4)(B) shall not apply in any case involving both a threat to use any weapon.C. § 831(f)(1). § 262a). agent. "Weapon of mass destruction" has the meaning given that term in 18 U. listed in Schedule I of the Annex on Chemicals to the Chemical Weapons Convention. § 8401).S. "Vector" has the meaning given that term in 18 U.C. agent.C.S. § 229F(6)(A).S. agent.S.C. or material covered by this guideline but that did not involve any conduct evidencing an intent or ability to carry out the threat. "Toxic chemical" has the meaning given that term in 18 U.C. For example. "National of the United States" has the meaning given that term in section 101(a)(22) of the Immigration and Nationality Act (8 U. § 229F(6)(B). § 831(f)(2).S. "Toxin" has the meaning given that term in 18 U. § 1219). § 2332a(c)(2)(B). the dispersal of talcum powder does not evidence an intent on the defendant’s part to carry out the threat. "Listed precursor or a listed toxic chemical" means a precursor or a toxic chemical. subsection (a)(4)(B) would not apply in a case in which the defendant threatened to contaminate an area with anthrax and also dispersed into the area a substance that the defendant believed to be anthrax but that in fact was harmless talcum powder.S. agent. § 175b(b)(2). "Restricted person" has the meaning given that term in 18 U. "Nuclear byproduct material" has the meaning given that term in 18 U. agent. 2. or material. In contrast. § 178(2).C. Threat Cases.C.C.November 1. or material. the dispersal of talcum powder was conduct evidencing an intent to carry out the threat because of the defendant’s belief that the talcum powder was anthrax. § 1101(a)(22)). respectively.S.1 foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act (8 U. subsection (a)(4)(B) would apply in a case in which the defendant threatened to contaminate an area with anthrax and also dispersed into the area a substance that appeared to be anthrax but that the defendant knew to be harmless talcum powder. or material is conduct evidencing an intent to use that weapon.C. (8)(B).S. In such a case.S.

amendment 637). November 1. regardless of whether the offense level is determined under this guideline or under another guideline in Chapter Two (Offense Conduct) by use of a cross reference under subsection (c). and Regulations (a) Base Offense Level (Apply the greater): (1) 30. This provision covers.§2M6. Amended effective November 1. GUIDELINES MANUAL November 1. Background: This section applies to offenses related to nuclear energy not specifically addressed elsewhere. amendment 633). Amended effective November 1. or (B) conduct tantamount to the attempted murder of more than one victim.—Subsection (d) applies in any case in which the defendant is convicted of a single count involving (A) the death or permanent. license conditions. 2006 (see Appendix C. Rules. and orders of the Nuclear Regulatory Commission and the Department of Energy. Historical Note: Effective November 1. November 1. 2005 (see Appendix C. 2001 (see Appendix C.S. if the offense was committed with intent to injure the United States or to aid a foreign nation. §2M6. amendment 686). Historical Note: Effective November 1. 2002 (see Appendix C. (2) Commentary Statutory Provision: 42 U.C. amendment 679).2. 1987. violations of statutes dealing with rules and regulations. 1990 (see Appendix C. November 1. for example. amendments 699 and 700). 2009 Application of Special Instruction.1 3. amendment 359). 1987. or serious bodily injury of more than one victim. November 1. life-threatening. 2003 (see Appendix C. § 2273. Violation of Other Federal Atomic Energy Agency Statutes. November 1. 2007 (see Appendix C. amendment 655). or 6. – 286 – .

1987. or §2A1. 1. § 1365(a).2 (Second Degree Murder) in any other case. apply §2A2. life-threatening. (2) (3) (d) Special Instruction (1) If the defendant is convicted of a single count involving (A) the death or permanent. Attempted Murder) if the resulting offense level is greater than that determined above.1 (First Degree Murder) if the death was caused intentionally or knowingly. AGRICULTURAL PRODUCTS. DRUGS. or (B) conduct tantamount to the attempted murder of more than one victim. – 287 – .OFFENSES INVOLVING FOOD. amendment 733). increase by 3 levels. (e). 2009 (see Appendix C. AND ODOMETER LAWS Historical Note: Effective November 1. increase by 4 levels. or serious bodily injury of more than one victim.1 PART N . Amended effective November 1.1 (Assault with Intent to Commit Murder. or (C) if the degree of injury is between that specified in subdivisions (A) and (B). TAMPERING WITH CONSUMER PRODUCTS §2N1. apply §2B3. Chapter Three. Tampering or Attempting to Tamper Involving Risk of Death or Bodily Injury (a) (b) Base Offense Level: 25 Specific Offense Characteristic (1) (A) If any victim sustained permanent or life-threatening bodily injury.2 (Extortion by Force or Threat of Injury or Serious Damage) if the resulting offense level is greater than that determined above.C. If the offense was tantamount to attempted murder.1. (c) Cross References (1) If the offense resulted in death. increase by 2 levels. If the offense involved extortion. Commentary Statutory Provisions: 18 U. (B) if any victim sustained serious bodily injury. Part D (Multiple Counts) shall be applied as if the defendant had been convicted of a separate count for each such victim. CONSUMER PRODUCTS.S. 2009 GUIDELINES MANUAL §2N1.November 1. apply §2A1.

or substantial property damage or monetary loss resulted. amendment 376). and neither caused nor was intended to cause bodily injury. 1987. § 1365(c). §2N1. bodily injury. Providing False Information or Threatening to Tamper with Consumer Products (a) (b) Base Offense Level: 16 Cross Reference (1) If the offense involved extortion. apply §2B3. In the unusual case in which the offense did not cause a risk of death or serious bodily injury.C.§2N1.C. Amended effective November 1. Where the offense posed a substantial risk of death or serious bodily injury to numerous victims. November 1. Tampering With Intent to Injure Business (a) Base Offense Level: 12 Commentary Statutory Provision: 18 U. 1987. amendment 338). a downward departure may be warranted. If death or bodily injury. 1990 (see Appendix C. Application Note: 1. Historical Note: Effective November 1. §2N1. an upward departure may be warranted. amendment 339). 2009 The base offense level reflects that this offense typically poses a risk of death or serious bodily injury to one or more victims. 1990 (see Appendix C. – 288 – . (d).S. GUIDELINES MANUAL November 1.3. an upward departure may be warranted. Part K (Departures). The special instruction in subsection (d)(1) applies whether the offense level is determined under subsection (b)(1) or by use of a cross reference in subsection (c).1 Application Notes: 1. Commentary Statutory Provisions: 18 U. 2. 1991 (see Appendix C.2. or caused extreme psychological injury or substantial property damage or monetary loss. See Chapter Five.2 (Extortion by Force or Threat of Injury or Serious Damage). or is intended to cause. or causes. Historical Note: Effective November 1. extreme psychological injury. § 1365(b).S. Amended effective November 1.

Agricultural Product. §2N2. §§ 115. If death or bodily injury. apply that other offense guideline if the resulting offense level is greater than that determined above. 2009 GUIDELINES MANUAL §2N2. For additional statutory provision(s).C. a downward departure may be warranted.1.1 (Theft. 642644. Drug. 617. 333(a)(1). (b). Cosmetic. (a)(2). Property Destruction.C.November 1.S. 2009 (see Appendix C.S. 21 U. FOOD. increase by 4 levels.S. DRUGS. and Fraud). extreme psychological injury. 8313. amendment 733). 611. 6810. Part K (Departures). Device. This guideline assumes a regulatory offense that involved knowing or reckless conduct. 150gg. or to conceal.S. § 331 after sustaining a prior conviction under 21 U. Violations of Statutes and Regulations Dealing With Any Food. 331. 134-134e. Application Notes: 1. apply §2B1. * * * * * 2. 619. (2) Commentary Statutory Provisions: 7 U. (c) Cross References (1) If the offense involved fraud. 610. Where only negligence was involved. 676. AND CONSUMER PRODUCTS Historical Note: Effective November 1.S. 42 U. 463. If the offense was committed in furtherance of. 122. Amended effective November 1. § 331.1 Application Note: 1. 117. or Consumer Product (a) (b) Base Offense Level: 6 Specific Offense Characteristic (1) If the defendant was convicted under 21 U. § 262. AGRICULTURAL PRODUCTS. 466. 1987. 620.C. 7734. See Chapter Five. Historical Note: Effective November 1. Biological Product. or substantial property damage or monetary loss resulted. Part K (Departures). – 289 – . See Chapter Five.C. 151-158. 614. an upward departure may be warranted. 1987.C. §§ 150bb. see Appendix A (Statutory Index). 458-461. an offense covered by another offense guideline.

The defendant was convicted under 7 U. 2002 (see Appendix C. November 1.S. Odometer Laws and Regulations (a) (b) Base Offense Level: 6 Cross Reference (1) If the offense involved more than one vehicle. Amended effective November 1.1 (Theft. bribery).§2N2. November 1. 2009 (see Appendix C. 3. amendment 733). See Chapter Five. 2008 (see Appendix C. by the victim for such substance. * * * * * 3. Part D (Offenses Involving Drugs and Narco-Terrorism). property damage. extreme psychological injury. 2001 (see Appendix C. 2003 (see Appendix C. amendment 723). 2006 (see Appendix C.1 2. or monetary loss resulted from the offense. death. an offense covered by another offense guideline (e.1. amendment 432). 1990 (see Appendix C. In the case of an offense involving a substance purported to be an anabolic steroid. November 1. Part K (Departures). November 1. amendment 340). – 290 – . November 1. (B) 4. apply §2B1. Upward Departure Provisions. November 1.S. amendment 646). amendment 451). 32709(b). The cross reference at subsection (c)(2) addresses cases in which the offense was committed in furtherance of. or bodily injury.C. amendment 617). GUIDELINES MANUAL November 1. 1987.. Offenses involving anabolic steroids are covered by Chapter Two. Historical Note: Effective November 1. § 7734.1 (Theft. and Fraud) with "loss" measured by the amount paid. November 1.S.—The following are circumstances in which an upward departure may be warranted: (A) The offense created a substantial risk of bodily injury or death. ODOMETER LAWS AND REGULATIONS §2N3. 1991 (see Appendix C. but not containing any active ingredient.g. 1992 (see Appendix C. The Commission has not promulgated a guideline for violations of 21 U. apply §2B1. amendment 711). § 333(e) (offenses involving human growth hormones). Property Destruction. November 1. or to be paid. 2009 The cross reference at subsection (c)(1) addresses cases in which the offense involved fraud.C.C. Commentary Statutory Provisions: 49 U. November 1. or to conceal. amendment 661). §§ 32703-32705. Property Destruction. and Fraud). 2007 (see Appendix C. amendment 685).

amendment 617). Historical Note: Effective November 1. – 291 – . and Fraud) is to be applied because it is designed to deal with a pattern or scheme.November 1. 1989 (see Appendix C. amendment 553). Amended effective November 1. November 1.1 (Theft. 2009 GUIDELINES MANUAL §2N3. Property Destruction. §2B1. 1987. If more than one vehicle was involved. amendment 199). 1997 (see Appendix C.1 Background: The base offense level takes into account the deceptive aspect of the offense assuming a single vehicle was involved. 2001 (see Appendix C. November 1.

S. while away from the facility. Provided. increase by 2 levels.1 GUIDELINES MANUAL November 1. state. (2) (b) Specific Offense Characteristics (1) If the use or the threat of force against any person was involved. For additional statutory provision(s). "Non-secure custody" means custody with no significant physical restraint (e.1(a)(1) by 7 levels or the offense level under §2P1. 752. decrease the offense level under subsection (a)(1) by 4 levels or the offense level under subsection (a)(2) by 2 levels. Instigating or Assisting Escape (a) Base Offense Level: (1) 13.C. committed any federal. or local offense punishable by a term of imprisonment of one year or more. community treatment center. that this reduction shall not apply if the defendant.1. Provided.g. – 292 – . however. 755. 2009 PART P . at the time of the offense. Escape.OFFENSES INVOLVING PRISONS AND CORRECTIONAL FACILITIES §2P1. where a defendant failed to return to any institution from a pass or unescorted furlough.S. committed any federal. or an employee of the Department of Justice. or conviction of any offense. If the defendant escaped from the non-secure custody of a community corrections center. increase by 5 levels.C.. state. or local offense punishable by a term of imprisonment of one year or more. decrease the offense level under §2P1. see Appendix A (Statutory Index). however. Application Notes: 1. If the defendant escaped from non-secure custody and returned voluntarily within ninety-six hours. while away from the facility. if the custody or confinement is by virtue of an arrest on a charge of felony. 28 U. that this reduction shall not apply if the defendant. otherwise. 8. If the defendant was a law enforcement or correctional officer or employee. where a defendant walked away from a work detail outside the security perimeter of an institution. § 1826." or similar facility. and subsection (b)(2) is not applicable. or where a defendant escaped from an institution with no physical perimeter barrier).1(a)(2) by 4 levels. "halfway house.§2P1. (2) (3) (4) Commentary Statutory Provisions: 18 U. §§ 751.

6. 13. If the adjustment in subsection (b)(1) applies as a result of conduct that involves an official victim. if the object was a firearm or destructive device.November 1. Criminal history points under Chapter Four. criminal history points from §4A1. 4. health. or a controlled substance (other than LSD.1(d) (custody status). If death or bodily injury resulted. 3. amendments 200 and 201). 5. and §4A1. methamphetamine. United States or foreign currency. discipline. or security of the institution or the life.2. PCP. if the object was any other object that threatened the order. LSD. 1990 (see Appendix C. any object that might be used as a weapon or as a means of facilitating escape.3 (Abuse of Position of Trust or Use of Special Skill). 6. Part A (Criminal History) are to be determined independently of the application of this guideline. (3) (4) (b) Specific Offense Characteristic (1) If the defendant was a law enforcement or correctional officer or employee. if the object was an alcoholic beverage. or an employee of the Department of Justice. ammunition. 1989 (see Appendix C. at the time of the offense. amendment 341). Amended effective November 1. §2P1. no adjustment is to be made under §3B1. amendment 406).1(e) (recency) would be applicable. 1987.2 2. November 1. 4. in the case of a defendant serving a one-year sentence of imprisonment at the time of the escape. §4A1. methamphetamine. November 1. an upward departure may be warranted.1(b) (for the sentence being served at the time of the escape). increase by 2 levels. do not apply §3A1. 2009 GUIDELINES MANUAL §2P1.2 (Official Victim). if the object was a weapon (other than a firearm or a destructive device). If the adjustment in subsection (b)(4) applies. – 293 – . For example. Historical Note: Effective November 1. or safety of an individual. Providing or Possessing Contraband in Prison (a) Base Offense Level: (1) (2) 23. See Chapter Five. Part K (Departures). PCP. or a narcotic drug. 1991 (see Appendix C. or a narcotic drug). "Returned voluntarily" includes voluntarily returning to the institution or turning one’s self in to a law enforcement authority as an escapee (not in connection with an arrest or other charges).

§2P1. November 1. § 1791(c).2 (c) Cross Reference (1) GUIDELINES MANUAL November 1.5 apply. Provided. a sentence imposed upon an inmate for a violation of 18 U.S.) The combined sentence will then be constructed to provide a "total punishment" that satisfies the requirements both of §5G1.1 (Unlawful Manufacturing. Importing. November 1. In a case in which the defendant is convicted of the underlying offense and an offense involving providing or possessing a controlled substance in prison. amendment 579).S.2 (Sentencing on Multiple Counts of Conviction) and 18 U. See §3D1. November 1.2(b)(1) applies. amendments 202 and 203).2. section 1791(c) requires that the sentence be imposed to run consecutively to any other sentence of imprisonment for the controlled substance. (n.1-3D1. unlike a count in which the statute mandates both a minimum and a consecutive sentence of imprisonment. 2. Pursuant to 18 U.1(b)(1).S. 2009 If the object of the offense was the distribution of a controlled substance. and §3D1. although if a sentence of imprisonment is imposed on a count involving providing or possessing a controlled substance in prison. § 1791 shall be consecutive to the sentence being served by the inmate at the time of the violation. that if the defendant is convicted under 18 U. § 1791(b) does not require a sentence of imprisonment.2(c). Therefore. 1989 (see Appendix C. Application Notes: 1. and the resulting offense level is less than level 26.C.3 (Abuse of Position of Trust or Use of Special Skill).S. 1995 (see Appendix C. (n. If the adjustment in §2P1. Amended effective November 1. 1987. § 1791(b)(1). Commentary Statutory Provision: 18 U. For example. comment. Attempt or Conspiracy). – 294 – . no adjustment is to be made under §3B1. a sentence of 30 months for the underlying offense plus a consecutive six months’ sentence for the providing or possessing a controlled substance in prison count would satisfy these requirements. increase to level 26. group the offenses together under §3D1.1). the grouping rules of §§3D1.C.C.C.1). 2005 (see Appendix C.C. apply the offense level from §2D1. Historical Note: Effective November 1. § 1791(a)(1) and is punishable under 18 U. § 1791.S. amendment 525). 1998 (see Appendix C.S. comment. § 1791(c).S. amendment 680). (Note that 18 U.C.C. or Trafficking. if the combined applicable guideline range for both counts is 30-37 months and the court determines a "total punishment" of 36 months is appropriate. Exporting.

1987. 10. an upward departure may be warranted.4 (Trespass on Bureau of Prisons Facilities). if the offense involved a major disruption to the operation of an institution. See Chapter Five. if the offense was committed under circumstances creating a substantial risk of death or serious bodily injury to any person. Part K (Departures).4. was deleted effective November 1. effective November 1. (2) (3) Commentary Statutory Provision: 18 U. Historical Note: Effective November 1. – 295 – . § 1792. 2009 GUIDELINES MANUAL §2P1.November 1. 1989 (see Appendix C. 1987. otherwise. amendment 204). [Deleted] Historical Note: Section 2P1. If death or bodily injury resulted. 16. Inciting or Attempting to Incite a Riot Involving Persons in a Facility for Official Detention (a) Base Offense Level: (1) 22.3. Engaging In.C. Application Note: 1. §2P1.S.4 §2P1.

amendment 699). Amended effective November 1. release. – 296 – (3) . increase by 4 levels. Tampering. or emission of a hazardous or toxic substance or pesticide into the environment. (B) (2) If the offense resulted in a substantial likelihood of death or serious bodily injury. or if the offense otherwise involved a discharge. Mishandling of Hazardous or Toxic Substances or Pesticides.C. See Chapter Five.S. § 1992(b)(3).1. increase by 4 levels.1 GUIDELINES MANUAL November 1. § 6928(e). Recordkeeping. release. Pesticides or Other Pollutants (a) Base Offense Level: 24 Commentary Statutory Provisions: 18 U. 2009 PART Q . 2007 (see Appendix C. If death or serious bodily injury resulted.S. Application Note: 1.OFFENSES INVOLVING THE ENVIRONMENT 1. increase by 9 levels.S. Unlawfully Transporting Hazardous Materials in Commerce (a) (b) Base Offense Level: 8 Specific Offense Characteristics (1) (A) If the offense resulted in an ongoing.C.§2Q1. ENVIRONMENT §2Q1. or repetitive discharge.2. Background: This section applies to offenses committed with knowledge that the violation placed another person in imminent danger of death or serious bodily injury. 42 U.C. 33 U. §2Q1. or emission of a hazardous or toxic substance or pesticide. If the offense resulted in disruption of public utilities or evacuation of a community. 1987. continuous. § 1319(c)(3). Historical Note: Effective November 1. or if cleanup required a substantial expenditure. Part K (Departures). Knowing Endangerment Resulting From Mishandling Hazardous or Toxic Substances. increase by 6 levels. an upward departure may be warranted. and Falsification.

C. 4. §§ 136j-136l.g.S. 1517(b). For additional statutory provision(s). are revised from time to time. and pesticides. a downward departure may be warranted. "Toxic" and "hazardous" are defined differently in various statutes. this section assumes knowing conduct. (d). involving the handling of different quantities of materials with widely differing propensities. 42 U. In cases involving negligent conduct. § 5124 or § 46312. maintain. Several federal statutes (or regulations promulgated thereunder) list toxics. . § 9601(14)). increase by 4 levels. "Recordkeeping offense" includes both recordkeeping and reporting offenses.2 (4) If the offense involved transportation. storage. § 1317) as well as the designation of hazardous substances under the Comprehensive Environmental Response. 9603(b). §§ 5124. (2).S.S. but the common dictionary meanings of the words are not significantly different. treatment.S. 42 U.C.S. If the defendant was convicted under 49 U. releases. 6928(d). and failure to prepare. §§ 2614 and 2615. 33 U. Compensation and Liability Act (e. 1816(a).C. or emissions where required. the giving of false information. This section applies to offenses involving pesticides or substances designated toxic or hazardous at the time of the offense by statute or regulation. Subsection (b)(1) assumes a discharge or emission into the environment resulting in actual environmental contamination. or provide records as prescribed.C. A wide range of conduct. 1321(b)(5). 33 U.. §§ 300h-2. The term is to be broadly construed as including failure to report discharges. 15 U.. increase by 2 levels. "Simple recordkeeping or reporting violation" means a recordkeeping or reporting offense in a situation where the defendant neither knew nor had reason to believe that the recordkeeping offense would significantly increase the likelihood of any substantive environmental harm.S. use the offense level for the substantive offense. 7413.November 1. 3. If the offense involved a simple recordkeeping or reporting violation only.C. 46312. 1822(b).S.C.C. 2009 GUIDELINES MANUAL §2Q1. Except when the adjustment in subsection (b)(6) for simple recordkeeping offenses applies. Depending – 297 – 2. such as those of toxic pollutants for which effluent standards are published under the Federal Water Pollution Control Act (e. (5) (6) (7) Commentary Statutory Provisions: 7 U.g. 43 U. (c). A listing of hazardous and toxic substances in the guidelines would be impractical. potentially is covered. hazardous wastes and substances. or disposal without a permit or in violation of a permit.C.S. §§ 1319(c)(1). 5. decrease by 2 levels. §§ 1350. These lists. see Appendix A (Statutory Index).C.S. Application Notes: 1. failure to file other required reports or provide necessary information. 49 U. If a recordkeeping offense reflected an effort to conceal a substantive environmental offense.

November 1.2 GUIDELINES MANUAL November 1. a departure of up to three levels upward or downward may be warranted. 2009 upon the harm resulting from the emission. a departure of up to two levels either upward or downward may be warranted. for "simple recordkeeping or reporting violations" under §2Q1. Other Upward Departure Provisions. – 298 – .§2Q1. a departure of up to two levels either upward or downward could be warranted. Depending upon the nature of the risk created and the number of people placed at risk. 9.—In a case in which the defendant has previously engaged in similar misconduct established by a civil adjudication or has failed to comply with an administrative order. Subsection (b)(4) applies where the offense involved violation of a permit.—If the offense was calculated to influence or affect the conduct of government by intimidation or coercion. 1987. Depending upon the nature and quantity of the substance involved and the risk associated with the offense. the duration of the offense and the risk associated with the violation. an upward departure may be warranted. release or discharge. Subsection (b)(2) applies to offenses where the public health is seriously endangered.— (A) Civil Adjudications and Failure to Comply with Administrative Order. The last two specific offense characteristics apply to recordkeeping offenses. See Application Note 4 of the Commentary to §3A1. Historical Note: Effective November 1. amendment 481). or where there was a failure to obtain a permit when one was required.3 (Departures Based on Inadequacy of Criminal History Category). amendment 553). 2004 (see Appendix C. evacuation or cleanup at substantial expense has been required. Although other sections of the guidelines generally prescribe a base offense level of 6 for regulatory violations. Subsection (b)(3) provides an enhancement where a public disruption. 1993 (see Appendix C. an upward departure may be warranted. Terrorism.4 (Terrorism). See Chapter Five. The first four specific offense characteristics provide enhancements when the offense involved a substantive violation.2 prescribes a base offense level of 8 because of the inherently dangerous nature of hazardous and toxic substances and pesticides. the quantity and nature of the substance or pollutant. however. Depending upon the nature of the contamination involved. a departure of up to two levels in either direction from the offense levels prescribed in these specific offense characteristics may be appropriate. amendment 672). §2Q1. See §4A1. 6.3 (Extreme Psychological Injury).—If the offense caused extreme psychological injury. 8. (B) (C) Background: This section applies both to substantive violations of the statute governing the handling of pesticides and toxic and hazardous substances and to recordkeeping offenses. Part K (Departures). A decrease of 2 levels is provided. Extreme Psychological Injury. See §5K2. an upward departure would be warranted. or to retaliate against government conduct. 7.2(b)(6). a departure would be called for. 1997 (see Appendix C. If death or serious bodily injury results. Amended effective November 1. November 1.

Rules.S. 3. If the offense involved mishandling of nuclear material. The specific offense characteristics in this section assume knowing conduct. Recordkeeping.C. The term is to be broadly construed as including failure to report discharges. maintain.3 §2Q1. or provide records as prescribed. (c)(2).S. increase by 6 levels. apply §2M6. increase by 11 levels. and Regulations) rather than this guideline. 1319(c)(1). In cases involving negligent conduct. 1415(b). If the offense resulted in disruption of public utilities or evacuation of a community. For additional statutory provision(s). 411. increase by 4 levels. 1907. If the offense involved a discharge without a permit or in violation of a permit. . releases. and Falsification (a) (b) Base Offense Level: 6 Specific Offense Characteristics (1) (A) If the offense resulted in an ongoing. use the offense level for the substantive offense. or if the offense otherwise involved a discharge. (B) (2) If the offense resulted in a substantial likelihood of death or serious bodily injury. or emission of a pollutant. a downward departure may be warranted.2 (Violation of Other Federal Atomic Energy Agency Statutes. Mishandling of Other Environmental Pollutants.November 1. failure to file other required reports or provide necessary information. 4. or repetitive discharge. 1908.3. Tampering. and failure to prepare. or emission of a pollutant into the environment. A wide range of conduct. see Appendix A (Statutory Index). or emissions where required. If a recordkeeping offense reflected an effort to conceal a substantive environmental offense. involving the handling of different quantities of materials with widely differing propensities. 406. increase by 4 levels. 42 U. Subsection (b)(1) assumes a discharge or emission into the environment resulting in actual environmental contamination. 2009 GUIDELINES MANUAL §2Q1. §§ 403. increase by 4 levels. the giving of false information. Application Notes: 1. continuous. Depending – 299 – 2.C. § 7413. release. 407. "Recordkeeping offense" includes both recordkeeping and reporting offenses. (3) (4) (5) Commentary Statutory Provisions: 33 U. release. or if cleanup required a substantial expenditure. potentially is covered.

increase by 4 levels. Subsection (b)(2) applies to offenses where the public health is seriously endangered. Amended effective November 1. a departure of up to three levels upward or downward may be warranted. Depending upon the nature of the contamination involved. or 16. Historical Note: Effective November 1. Part K (Departures). release or discharge. §2Q1. or where there was a failure to obtain a permit when one was required. 1987. 22. Depending upon the nature and quantity of the substance involved and the risk associated with the offense.3 (Adequacy of Criminal History Category). a departure would be called for. a departure of up to two levels in either direction may be warranted. amendment 205). Threatening to Tamper with a Public Water System (a) Base Offense Level (Apply the greatest): (1) (2) 26. if the offense involved (A) a threat to tamper with a public water system.§2Q1. a departure of up to two levels in either direction from that prescribed in these specific offense characteristics may be appropriate. 2009 upon the harm resulting from the emission. Subsection (b)(3) provides an enhancement where a public disruption. if the offense involved a threat to tamper with a public water system but did not involve any conduct evidencing an intent to carry out the threat. (3) (b) Specific Offense Characteristics (1) If (A) any victim sustained permanent or life-threatening bodily injury. – 300 – . See Chapter Five. a departure of up to two levels in either direction could be warranted. the duration of the offense and the risk associated with the violation. See §4A1. the quantity and nature of the substance or pollutant. (B) any victim sustained serious bodily injury.3 GUIDELINES MANUAL November 1. Background: This section parallels §2Q1. If death or serious bodily injury results. 8. an upward departure may be warranted.4. 6. 5. evacuation or cleanup at substantial expense has been required. Where a defendant has previously engaged in similar misconduct established by a civil adjudication or has failed to comply with an administrative order.2 but applies to offenses involving substances which are not pesticides and are not designated as hazardous or toxic. 7. 1989 (see Appendix C. and (B) any conduct evidencing an intent to carry out the threat. Tampering or Attempted Tampering with a Public Water System. Subsection (b)(4) applies where the offense involved violation of a permit. Depending upon the nature of the risk created and the number of people placed at risk.

Application Notes: 1. 2009 GUIDELINES MANUAL §2Q1. If the offense involved extortion.November 1. continuous. If the offense resulted in an ongoing.1 (Application Instructions). or §2A1. or (C) the degree of injury is between that specified in subdivisions (A) and (B). or repetitive release of a contaminant into a public water system or lasted for a substantial period of time. governmental. life-threatening."permanent or life-threatening bodily injury" and "serious bodily injury" have the meaning given those terms in Note 1 of the Commentary to §1B1. life-threatening. or business functions or services. Application of Special Instruction. If the offense was tantamount to attempted murder. or (B) a substantial expenditure of funds to clean up. apply §2A1. (3) (c) Cross References (1) If the offense resulted in death.2 (Second Degree Murder) in any other case.1 (Assault with Intent to Commit Murder. Part D (Multiple Counts) shall be applied as if the defendant had been convicted of a separate count for each such victim. or (B) conduct tantamount to the attempted murder of more than one victim.C. (2) (3) (d) Special Instruction (1) If the defendant is convicted of a single count involving (A) the death or permanent. Attempted Murder) if the resulting offense level is greater than that determined above.—Subsection (d) applies in any case in which the defendant is convicted of a single count involving (A) the death or permanent. (2) If the offense resulted in (A) a substantial disruption of public. or serious bodily injury of more than one victim.S. decontaminate. increase by 2 levels. § 300i-1.4 increase by 2 levels. or serious bodily injury of more than one victim. apply §2B3. or (B) conduct tantamount to the attempted murder of – 301 – 2. apply §2A2.2 (Extortion by Force or Threat of Injury or Serious Damage) if the resulting offense level is greater than that determined above.—For purposes of this guideline. if the resulting offense level is greater than that determined above. Chapter Three. increase by 4 levels. increase by 3 levels. Definitions. . Commentary Statutory Provision: 42 U.1 (First Degree Murder) if the death was caused intentionally or knowingly. or otherwise respond to the offense.

4 (Terrorism). and property destruction resulted.§2Q1.5. §2Q1.4 GUIDELINES MANUAL November 1. an upward departure may be warranted. 1987.—If the offense caused extreme psychological injury.6. Departure Provisions. amendment 655). Amended effective November 1. 1989 (see Appendix C. If the offense involved reckless disregard to the risk that another person would be placed in danger of death or serious bodily injury under (2) (3) – 302 – . If the offense was calculated to influence or affect the conduct of government by intimidation or coercion. apply §2B1. November 1. was deleted by consolidation with §2Q1.—The base offense level in subsection (a)(1) reflects that offenses covered by that subsection typically pose a risk of death or serious bodily injury to one or more victims.— (A) Downward Departure Provision. and Fraud). Historical Note: Effective November 1. regardless of whether the offense level is determined under this guideline or under another guideline in Chapter Two (Offense Conduct) by use of a cross reference under subsection (c). In the unusual case in which such an offense did not cause a risk of death or serious bodily injury. 1989 (see Appendix C. [Deleted] Historical Note: Effective November 1. Property Destruction. or caused substantial property damage or monetary loss. 3. (B) §2Q1.4 effective November 1. See Application Note 4 of §3A1. 2003 (see Appendix C. Attempt or Conspiracy). bodily injury. or are intended to cause. amendment 655). Hazardous or Injurious Devices on Federal Lands (a) Base Offense Level (Apply the greatest): (1) If the intent was to violate the Controlled Substance Act. or to retaliate against government conduct. If the intent was to obstruct the harvesting of timber.1 (Theft. and neither caused nor was intended to cause bodily injury. amendment 206). 2003 (see Appendix C. Upward Departure Provisions. 1987. or cause. amendment 207). apply §2D1. an upward departure would be warranted.9 (Placing or Maintaining Dangerous Devices on Federal Property to Protect the Unlawful Production of Controlled Substances. Amended effective November 1. 2009 more than one victim. a downward departure may be warranted.

Property Destruction.2 (Aggravated Assault). November 1.C. and Plants (a) (b) Base Offense Level: 6 Specific Offense Characteristics (1) If the offense (A) was committed for pecuniary gain or otherwise involved a commercial purpose. wildlife. or plants (i) exceeded $2. ranging from placing nails in trees to interfere with harvesting equipment to placing anti-personnel devices capable of causing death or serious bodily injury to protect the unlawful production of a controlled substance. (If more than one applies. or (ii) exceeded $5. amendment 313). 1989 (see Appendix C.000. or (4) 6.000 but did not exceed $5. November 1. or plants. the offense level from §2A2. Wildlife. use the greater): (A) If the market value of the fish. Subsections (a)(1)-(a)(3) cover the more serious forms of this offense.1 circumstances manifesting extreme indifference to such risk. or (B) otherwise created a significant risk of infestation or disease transmission potentially harmful to humans. 2001 (see Appendix C. increase by 2 levels. wildlife. Offenses Involving Fish. * * * * * 2. amendment 208). wildlife. If the offense (A) involved fish.1. Amended effective November 1. 1990 (see Appendix C. amendment 617). or plants that were not quarantined as required by law.000. increase by 2 levels. or – 303 – (2) (3) . § 1864. Background: The statute covered by this guideline proscribes a wide variety of conduct.1 (Theft. amendment 646). 2009 GUIDELINES MANUAL §2Q2. or (B) involved a pattern of similar violations. and Fraud) corresponding to that amount. Commentary Statutory Provision: 18 U. increase by 1 level. otherwise. Subsection (a)(4) provides a minimum offense level of 6 where the intent was to obstruct the harvesting of timber and little or no property damage resulted. CONSERVATION AND WILDLIFE §2Q2. 2002 (see Appendix C. Historical Note: Effective November 1. fish.S.November 1. increase by the number of levels from the table in §2B1.

– 304 – . wildlife. shall not be based on measurement of aesthetic loss (so called "contingent valuation" methods). "market value" under subsection (b)(3)(A) shall be based on the fair-market retail price. Commentary Statutory Provisions: 16 U. 2009 If the offense involved (i) marine mammals that are listed as depleted under the Marine Mammal Protection Act (as set forth in 50 C. 1540(b). "For pecuniary gain" means for receipt of. Purchase. Exchange.F. Application Notes: 1. If the offense involved the destruction of a substantial quantity of fish. and 7 C.g.F. anything of value. if the resulting offense level is greater than that determined above. or Receipt of Cultural Heritage Resources). Unlawful Sale. 1338(a). Part 92. or plants. or Destruction of.R. wildlife. such as the reasonable replacement or restitution cost or the acquisition and preservation (e. 4. or plants for display to the public.C.5 (Theft of. offenses committed for pecuniary gain include both monetary and barter transactions. The acquisition of fish. or (iii) fish. wildlife.F. 554. apply §2B1. activities designed to increase gross revenue are considered to be committed for pecuniary gain. Cultural Heritage Resources.1 (B) GUIDELINES MANUAL November 1. taxidermy) cost. (c) Cross Reference (1) If the offense involved a cultural heritage resource. see Appendix A (Statutory Index)." For purposes of subsection (b)(2). an upward departure may be warranted. Market value. 3373(d). and the seriousness of the offense is not adequately measured by the market value. whether for a fee or donation and whether by an individual or an organization. 2.R. Transportation.R.S. increase by 4 levels.C. 707(b). 3. however.F. State quarantine laws are included as well.. §§ 545. Thus.§2Q2. a private non-profit organization. or plants that are listed as endangered or threatened by the Endangered Species Act (as set forth in 50 C. 1375(b). whether monetary or in goods or services. or in anticipation of receipt of. For additional statutory provision(s). including a governmental entity. 5. the quarantine requirements include those set forth in 9 C.R. Similarly. 18 U. wildlife. Where the fair-market retail price is difficult to ascertain.15). Part 23).F. Chapter III.S. (ii) fish. 1174(a). the court may make a reasonable estimate using any reliable information. Damage to. or a private for-profit organization. Part 17). or plants that are listed in Appendix I to the Convention on International Trade in Endangered Species of Wild Fauna or Flora (as set forth in 50 C. shall be considered to involve a "commercial purpose. § 216. §§ 668(a). When information is reasonably available.R.

amendment 41). Transportation. Unlawful Sale.5 (Theft of. 1991 (see Appendix C. 1987.2 (Lacey Act. November 1. Background: This section applies to violations of the Endangered Species Act.S. §§ 545 and 554 if the smuggling activity involved fish. 2002 (see Appendix C. 2009 GUIDELINES MANUAL §2Q2.C. amendment 617). Damage to. amendment 209). effective November 1.2. Purchase. "cultural heritage resource" has the meaning given that term in Application Note 1 of the Commentary to §2B1. amendment 700). November 1. Historical Note: Effective November 1. §2Q2. amendments 209 and 210). amendment 638). was deleted by consolidation with §2Q2. Amended effective January 15. the Bald Eagle Protection Act. Exchange. November 1. 1992 (see Appendix C. the Marine Mammal Protection Act. amendment 534). [Deleted] Historical Note: Section 2Q2. the Wild FreeRoaming Horses and Burros Act. For purposes of subsection (c)(1). 2001 (see Appendix C. November 1. November 1. Cultural Heritage Resources. 2007 (see Appendix C.November 1. 1989 (see Appendix C. November 1. 1988 (see Appendix C. Wildlife. the Lacey Act. amendment 407). 1989 (see Appendix C. – 305 – . amendment 452). the Migratory Bird Treaty. or Receipt of Cultural Heritage Resources).1 effective November 1. wildlife. the Fur Seal Act. and to violations of 18 U. 1995 (see Appendix C. and Plants).2 6. or plants. November 1. 1987. or Destruction of. Smuggling and Otherwise Unlawfully Dealing in Fish.

000.000 More than $1.000. neither the minimum nor maximum multiplier shall be less than 0.000 More than $100.000. use as the organization’s volume of commerce the – 306 – (2) (3) . (2) For purposes of this guideline.000 More than $250.75. the volume of commerce should be treated cumulatively to determine a single.000. Price-Fixing or Market-Allocation Agreements Among Competitors (a) (b) Base Offense Level: 12 Specific Offense Characteristics (1) If the conduct involved participation in an agreement to submit noncompetitive bids.000. If the volume of commerce attributable to the defendant was more than $1. adjust the offense level as follows: Volume of Commerce (Apply the Greatest) (A) (B) (C) (D) (E) (F) (G) (H) More than $1. Bid-Rigging.§2R1.000 More than $1. 2009 PART R . increase by 1 level. combined offense level.000. In a bid-rigging case in which the organization submitted one or more complementary bids.000.500.1.6 (Minimum and Maximum Multipliers).000.000. (c) Special Instruction for Fines (1) For an individual.4 (Base Fine).000. the volume of commerce attributable to an individual participant in a conspiracy is the volume of commerce done by him or his principal in goods or services that were affected by the violation.1 GUIDELINES MANUAL November 1. When multiple counts or conspiracies are involved.000 More than $40.ANTITRUST OFFENSES §2R1. (d) Special Instructions for Fines . the guideline fine range shall be from one to five percent of the volume of commerce.000.000 Adjustment to Offense Level add 2 add 4 add 6 add 8 add 10 add 12 add 14 add 16.000 More than $10.Organizations (1) In lieu of the pecuniary loss under subsection (a)(3) of §8C2. but not less than $20. When applying §8C2. use 20 percent of the volume of affected commerce.000.000 More than $500.

it should impose community service in lieu of a portion of the fine. among other things. if a sales manager organizes or leads the price-fixing activity of five or more participants. bonuses. Considerations in Setting Fine for Individuals. this factor should be considered in setting the fine within the guideline fine range. The purpose for specifying a percent of the volume of commerce is to avoid the time and expense that would be required for the court to determine the actual gain or loss.2. 3(b). The community service should be equally as burdensome as a fine. an individual defendant should be considered for a mitigating role adjustment only if he were responsible in some minor way for his firm’s participation in the conspiracy.1 (Obstructing or Impeding the Administration of Justice) may be relevant in determining the seriousness of the defendant’s offense. The fine for an organization is determined by applying Chapter Eight (Sentencing of Organizations).4(a)(3). the 4-level increase at §3B1. It is the intent of the Commission that alternatives such as community confinement not be used to avoid imprisonment of antitrust offenders. Another consideration in setting the fine is that the average level of mark-up due to price-fixing may tend to decline with the volume of commerce involved. 4. – 307 – . or (B) the largest contract on which the organization submitted a complementary bid in connection with the bid-rigging conspiracy.1(a) should be applied to reflect the defendant’s aggravated role in the offense. and 3C1. Because the loss from price-fixing exceeds the gain.—In setting the fine for individuals. see Appendix A (Statutory Index). For additional statutory provision(s). and the degree to which the defendant personally profited from the offense (including salary. the defendant’s role. For purposes of applying §3B1.1 (Aggravating Role). Application of Chapter Three (Adjustments). For example. Commentary Statutory Provisions: 15 U. subsection (d)(1) provides that 20 percent of the volume of affected commerce is to be used in lieu of the pecuniary loss under §8C2. 3. The loss from price-fixing exceeds the gain because. In cases in which the actual monopoly overcharge appears to be either substantially more or substantially less than 10 percent. In selecting a fine for an organization within the guideline fine range. If the court concludes that the defendant lacks the ability to pay the guideline fine.2 (Mitigating Role).S. It is estimated that the average gain from price-fixing is 10 percent of the selling price. the court should consider the extent of the defendant’s participation in the offense. 2009 GUIDELINES MANUAL §2R1.November 1. §§ 1. 3B1.C. Application Notes: 1. the court should consider both the gain to the organization from the offense and the loss caused by the organization. 3B1. 5. injury is inflicted upon consumers who are unable or for other reasons do not buy the product at the higher prices.—Sections 3B1.3 (Abuse of Position of Trust or Use of Special Skill).1 greater of (A) the volume of commerce done by the organization in the goods or services that were affected by the violation. 2. and career enhancement).

Part B (Role in the Offense). The volume of commerce is an acceptable and more readily measurable substitute.75. See §4A1. on one occasion.. in exchange for his being allowed to win a subsequent bid that he did not in fact win. Chapter Three. can cause serious economic harm. or an upward departure. 7.§2R1. Part E (Acceptance of Responsibility) and. but pursuant to subsection (d)(2). There is no consensus. Adjustments from Chapter Three. than typical under pre-guidelines practice. a sentence at the maximum of the applicable guideline range. Although they are not unlawful in all countries. The court should consider sentences near the top of the guideline range in such cases. the minimum multiplier is at least 0.3 (Adequacy of Criminal History Category). the defendant participated in an agreement not to submit a bid. has been promulgated. which furthermore are rarely prosecuted and may involve unsettled issues of law.1 6. the guideline fine range is determined under Chapter Eight (Sentencing of Organizations). GUIDELINES MANUAL November 1. nonetheless. including all bid-rigging cases. The Commission believes that the volume of commerce is liable to be an understated measure of seriousness in some bid-rigging cases. If. and consistent with pre-guidelines practice.e. Background: These guidelines apply to violations of the antitrust laws. This – 308 – . In the case of a defendant with previous antitrust convictions. restrict output and raise prices. in very few cases will the guidelines not require that some confinement be imposed. the guidelines require some period of confinement in the great majority of cases that are prosecuted. although he would have contributed to harm that possibly was quite substantial. For an organization. Substantial fines are an essential part of the sentence. For an individual. The limited empirical data available as to pre-guidelines practice showed that fines increased with the volume of commerce and the term of imprisonment probably did as well. The court will have the discretion to impose considerably longer sentences within the guideline ranges. about the harmfulness of other types of antitrust offenses. for example. only one guideline. Absent adjustments. Tying the offense level to the scale or scope of the offense is important in order to ensure that the sanction is in fact punitive and that there is an incentive to desist from a violation once it has begun. may be warranted. which deals with horizontal agreements in restraint of trade. without any inquiry in individual cases as to their actual competitive effect. his volume of commerce would be zero. but not less than $20. i. however. such as horizontal price-fixing (including bid-rigging) and horizontal marketallocation. 2009 Understatement of seriousness is especially likely in cases involving complementary bids. Consequently. The offense levels are not based directly on the damage caused or profit made by the defendant because damages are difficult and time consuming to establish. and serve no purpose other than to. may decrease these minimum sentences. in rare instances.000. the Commission has specified a 1-level increase for bid-rigging. or to submit an unreasonably high bid. and that are so plainly anticompetitive that they have been recognized as illegal per se. the guideline fine range is from one to five percent of the volume of commerce. prison terms for these offenders should be much more common. Adjustments will not affect the level of fines. there is near universal agreement that restrictive agreements among competitors. Under the guidelines. and usually somewhat longer. The agreements among competitors covered by this section are almost invariably covert conspiracies that are intended to. For this reason.

this minimum multiplier maintains incentives for desired organizational behavior. – 309 – . 1989 (see Appendix C. 2004 (see Appendix C. A minimum multiplier of at least 0. The Commission believes that most antitrust defendants have the resources and earning capacity to pay the fines called for by this guideline. 2003 (see Appendix C. November 1. At the same time. at least over time on an installment basis. Historical Note: Effective November 1. 1991 (see Appendix C. amendment 674).November 1. which requires a minimum fine of 15 percent of the volume of commerce for the least serious case. no lower minimum multiplier is needed as an incentive for self-reporting. 1987. amendment 661). 2009 GUIDELINES MANUAL §2R1. November 1. amendments 211 and 303). November 1.75 ensures that fines imposed in antitrust cases will exceed the average monopoly overcharge. amendments 377 and 422). Amended effective November 1. was selected to provide an effective deterrent to antitrust offenses. 2005 (see Appendix C. amendment 678). Because the Department of Justice has a well-established amnesty program for organizations that self-report antitrust offenses. November 1.1 multiplier.

and (B) the offense involved sophisticated laundering.C. 1990 (see Appendix C. and (B) the offense level for that offense can be determined. § 1957. and Fraud) corresponding to the value of the laundered funds.1 (Theft. amendment 342). increase by 1 level.§2S1.1. increase by 2 levels. and (B) the defendant knew or believed that any of the laundered funds were the proceeds of. or were intended to promote (i) an offense involving the manufacture. Engaging in Monetary Transactions in Property Derived from Unlawful Activity (a) Base Offense Level: (1) The offense level for the underlying offense from which the laundered funds were derived. if (A) the defendant committed the underlying offense (or would be accountable for the underlying offense under subsection (a)(1)(A) of §1B1. If the defendant was convicted under 18 U.MONEY LAUNDERING AND MONETARY TRANSACTION REPORTING Historical Note: Introductory Commentary to this Part. otherwise. If (i) subsection (a)(2) applies.3 (Relevant Conduct)). national security. (Apply the Greatest): (A) If the defendant was convicted under 18 U.1 GUIDELINES MANUAL November 1. increase by 4 levels.S. was deleted effective November 1. Laundering of Monetary Instruments. (2) (B) (C) (3) If (A) subsection (b)(2)(B) applies. or the sexual exploitation of a minor. or distribution of a controlled substance or a listed chemical. §2S1. § 1956. 1987. explosives. or 8 plus the number of offense levels from the table in §2B1.C. 2009 PART S . (2) (b) Specific Offense Characteristics (1) If (A) subsection (a)(2) applies. (ii) a crime of violence. increase by 2 levels. importation. – 310 – . and (ii) the defendant was in the business of laundering funds.S. increase by 6 levels. effective November 1. or (iii) an offense involving firearms. Property Destruction.

1957. counseled. Application of Subsection (a)(1). abetted. (C) distribution of material involving the sexual exploitation of a minor. financial transaction.—Notwithstanding §1B1.—For purposes of this guideline: "Crime of violence" has the meaning given that term in subsection (a)(1) of §4B1. see Appendix A (Statutory Index). transfer. 2. does not establish that the defendant committed. 1960 (but only with respect to unlicensed money transmitting businesses as defined in 18 U.3(a)(1)(A).—In cases in which subsection (a)(1) applies and there is more than one underlying offense. in cases in which subsection (a)(1) applies. Application of Chapter Three Adjustments. monetary transaction. commanded. "Criminally derived funds" means any funds derived. the defendant must have committed the underlying offense or be accountable for the underlying offense under §1B1. or represented by a law enforcement officer. the offense level for the underlying offense is to be determined under the procedures set forth in Application Note 3 of the Commentary to §1B1. to be derived from conduct constituting a criminal offense. or abusive sexual contact involving a minor. funds.2 (Definitions of Terms Used in Section 4B1.S. For additional statutory provision(s).C.S. or willfully caused the underlying offense.S. financial transaction. "Minor" means an individual under the age of 18 years. or a monetary instrument in violation of 18 U. "Laundering funds" means making a transaction.5(c).C. or transporting or transferring property. aided.C. or monetary instrument involved in the transaction.5 (Interpretation of References to Other Offense Guidelines). transportation.November 1.S.— (A) Multiple Underlying Offenses. induced. 2009 GUIDELINES MANUAL §2S1. "Sexual exploitation of a minor" means an offense involving (A) promoting prostitution by a minor. or by another person at the direction or approval of an authorized Federal official. Definitions. or transmission. or possession of material involving the sexual exploitation of a minor with intent to distribute. sexual abuse. § 1956 or § 1957. or transmission in violation of 18 U. "Laundered funds" means the property. § 1960(b)(1)(C)). Defendants Accountable for Underlying Offense.C. Application Notes: 1.1 Commentary Statutory Provisions: 18 U. application of any Chapter Three adjustment shall be – 311 – (B) (C) .1). monetary transaction.—In order for subsection (a)(1) to apply. or (D) aggravated sexual abuse. (B) sexually exploiting a minor by production of sexually explicit visual or printed material. The fact that the defendant was involved in laundering criminally derived funds after the commission of the underlying offense. funds. § 1956 or § 1957. §§ 1956. procured. without additional involvement in the underlying offense.

transfer. is the amount of the criminally derived funds.3(a)(1)(A)).C. § 5316. is the total amount of the commingled funds. or any similar offense under state law. the value of the laundered funds. The defendant engaged in laundering funds during an extended period of time. § 1957. Factors to Consider. or under 31 U.1 GUIDELINES MANUAL November 1.. If the amount of the criminally derived funds is difficult or impracticable to determine.C. Application of Subsection (a)(2).§2S1. The defendant generated a substantial amount of revenue in return for laundering funds. § 1956(h) and the sole object of that conspiracy was to commit an offense set forth in 18 U. for purposes of subsection (a)(2). The defendant engaged in laundering funds from multiple sources.S.—The court shall consider the totality of the circumstances to determine whether a defendant who did not commit the underlying offense was in the business of laundering funds. transportation. 2009 determined based on the offense covered by this guideline (i. 3. financial transaction. or (ii) the defendant committed the underlying offense (or would be accountable for the underlying offense under §1B1. if the defendant provides sufficient information to determine the amount of criminally derived funds without unduly complicating or prolonging the sentencing process. § 5313.—In a case in which a transaction. the defendant had one or more prior convictions for an offense under 18 U.S.C. monetary transaction.S. for purposes of subsection (a)(2). At the time the defendant committed the instant offense. the laundering of criminally derived funds) and not on the underlying offense from which the laundered funds were derived.—Subsection (a)(2) applies to any case in which (i) the defendant did not commit the underlying offense.C. Enhancement for Business of Laundering Funds.— (A) In General.S. the value of the laundered funds. but the offense level for the underlying offense is impossible or impracticable to determine. for purposes of subsection (b)(2)(C).—Subsection (b)(2)(B) shall not apply if the defendant was convicted of a conspiracy under 18 U.—The following is a non-exhaustive list of factors that may indicate the defendant was in the business of laundering funds for purposes of subsection (b)(2)(C): (i) (ii) (iii) (iv) The defendant regularly engaged in laundering funds. § 1956 or § 1957.— (A) In General. or transmission results in the commingling of legitimately derived funds with criminally derived funds. or an attempt or conspiracy to commit any such federal or state offense. § 5324 or § 5326. A conviction taken into account under subsection (b)(2)(C) is not – 312 – (B) (v) . Commingled Funds. § 5314. Non-Applicability of Enhancement.e. not the total amount of the commingled funds. (B) (C) 4.

C. amendment 634). Amended effective November 1. was deleted by consolidation with §2S1. the defendant made statements that the defendant engaged in any of the conduct described in subdivisions (i) through (iv). Sophisticated laundering typically involves the use of— (i) (ii) (iii) fictitious entities. or transmissions. transportation. Historical Note: Effective November 1.November 1. amendment 422). 2001 (see Appendix C. (vi) During the course of an undercover government investigation. Part A (Criminal History). involving criminally derived funds that were intended to appear legitimate. 1987. and November 1. amendments 378 and 422). 6. the counts shall be grouped pursuant to subsection (c) of §3D1. (A) Sophisticated Laundering under Subsection (b)(3). (iv) (B) Non-Applicability of Enhancement.S. November 1. 1991 (see Appendix C. 1991 (see Appendix C. November 1.—If subsection (b)(3) applies. – 313 – . "sophisticated laundering" means complex or intricate offense conduct pertaining to the execution or concealment of the 18 U. amendment 634). [Deleted] Historical Note: Section 2S1.2 excluded from consideration of whether that conviction receives criminal history points pursuant to Chapter Four. amendments 212-214).2 (Groups of CloselyRelated Counts).2. amendment 215). effective November 1. §2S1. and the conduct that forms the basis for an enhancement under the guideline applicable to the underlying offense is the only conduct that forms the basis for application of subsection (b)(3) of this guideline.2 (Engaging in Monetary Transactions in Property Derived from Specified Unlawful Activity). 2009 GUIDELINES MANUAL §2S1. transfers. layering) of transactions. § 1956 offense.e. Grouping of Multiple Counts. amendment 655). November 1.—In a case in which the defendant is convicted of a count of laundering funds and a count for the underlying offense from which the laundered funds were derived.1 effective November 1. or offshore financial accounts.. 1989 (see Appendix C. two or more levels (i. do not apply subsection (b)(3) of this guideline. 2003 (see Appendix C. amended effective November 1.—For purposes of subsection (b)(3). 1989 (see Appendix C. 1987. 2001 (see Appendix C. 5. shell corporations.

§§ 5313.S.000 in a 12-month period. 5332. 5318. GUIDELINES MANUAL November 1.3 §2S1. Failure to Report Cash or Monetary Transactions. Bulk Cash Smuggling.C. If the defendant (A) was convicted of an offense under subchapter II of chapter 53 of title 31. § 5318 or § 5318A.S. – 314 – . § 6050I). Commentary Statutory Provisions: 18 U. 5331. 5316. Part T (Offenses Involving Taxation) if the resulting offense level is greater than that determined above. 5326. § 6050I). (b) Specific Offense Characteristics (1) If (A) the defendant knew or believed that the funds were proceeds of unlawful activity.S. and Fraud) corresponding to the value of the funds. § 1960 (but only with respect to unlicensed money transmitting businesses as defined in 18 U.C.C. see Appendix A (Statutory Index). Property Destruction.§2S1. 5318A(b). For additional statutory provision(s). if the defendant was convicted under 31 U.C. and (D) the funds were to be used for a lawful purpose. (2) (3) (c) Cross Reference (1) If the offense was committed for the purposes of violating the Internal Revenue laws. 5324.C.S. (B) the defendant did not act with reckless disregard of the source of the funds. decrease the offense level to level 6.C. Knowingly Filing False Reports.C. Establishing or Maintaining Prohibited Accounts (a) Base Offense Level: (1) (2) 8. apply the most appropriate guideline from Chapter Two.S. 5322.3. (C) the funds were the proceeds of lawful activity. or (B) the offense involved bulk cash smuggling. 31 U.1 (Theft. 2009 Structuring Transactions to Evade Reporting Requirements. United States Code. §§ 7203 (if a violation based upon 26 U. increase by 2 levels. if subsection (a)(1) does not apply. or 6 plus the number of offense levels from the table in §2B1.S. 5314. If (A) subsection (a)(2) applies and subsections (b)(1) and (b)(2) do not apply. 26 U. 7206 (if a violation based upon 26 U. or were intended to promote unlawful activity. increase by 2 levels. Failure to File Currency and Monetary Instrument Report. § 1960(b)(1)(A) and (B)). and (B) committed the offense as part of a pattern of unlawful activity involving more than $100.S.

2009 GUIDELINES MANUAL §2S1. amendment 655).1 (Offenses Involving Counterfeit Bearer Obligations of the United States). amendments 379 and 422).000 Received in a Trade or Business. pertaining to records. without regard to whether any such occasion occurred during the course of the offense or resulted in a conviction for the conduct that occurred on that occasion.4.C. 1991 (see Appendix C.000 in currency or other monetary instruments. §§ 5318 and 5318A. November 1. amendment 490).S. amendments 617 and 634). 2002 (see Appendix C.—For purposes of subsection (b)(1)(B). prohibited accounts involving certain foreign jurisdictions. 1993 (see Appendix C.November 1. and foreign banks. 1991 (see Appendix C. November 1. 1993 (see Appendix C. 2. November 1. and other types of transactions and types of accounts. and Reports of Cash Payments Over $10. Definition of "Value of the Funds".—For purposes of subsection (b)(2). 1989 (see Appendix C.4 (Failure to File Currency and Monetary Instrument Report). amendments 379 and 422). This guideline also covers offenses under 31 U. §2S1. more than $10. Amended effective November 1.C.S.4 Application Notes: 1. with the intent to evade a currency reporting requirement under 31 U. and (B) transporting or transferring (or attempting to transport or transfer) such currency or monetary instruments into or outside of the United States. "bulk cash smuggling" means (A) knowingly concealing. amendment 637).000 in a 12-month period. 2003 (see Appendix C. Background: Some of the offenses covered by this guideline relate to records and reports of certain transactions involving currency and monetary instruments. amendments 216-218). November 1. Historical Note: Effective November 1. effective November 1.3 effective November 1. Enhancement for Pattern of Unlawful Activity. was deleted by consolidation with §2S1. "pattern of unlawful activity" means at least two separate occasions of unlawful activity involving a total amount of more than $100. Currency and Monetary Instrument Reports. amendment 490). "United States" has the meaning given that term in Application Note 1 of the Commentary to §2B5. 3. foreign institutions. 1987. "value of the funds" means the amount of the funds involved in the structuring or reporting conduct. [Deleted] Historical Note: Section 2S1. reporting and identification requirements. – 315 – . November 1. § 5316. Bulk Cash Smuggling. These reports include Currency Transaction Reports. 2001 (see Appendix C. The relevant statutes require monetary reporting without regard to whether the funds were lawfully or unlawfully obtained.—For purposes of this guideline. Reports of Foreign Bank and Financial Accounts.

or Other Documents (a) Base Offense Level: (1) (2) (b) Level from §2T4. 1987.1 GUIDELINES MANUAL November 1. Introductory Commentary The criminal tax laws are designed to protect the public interest in preserving the integrity of the nation’s tax system. Criminal tax prosecutions serve to punish the violator and promote respect for the tax laws.e. the loss that would have resulted had the offense been successfully completed). statement. or other document. deterring others from violating the tax laws is a primary consideration underlying these guidelines. Statements. GIFT TAXES. Recognition that the sentence for a criminal tax case will be commensurate with the gravity of the offense should act as a deterrent to would-be violators. Fraudulent or False Returns. increase by 2 levels. Because of the limited number of criminal tax prosecutions relative to the estimated incidence of such violations. if there is no tax loss. §2T1. 1987. 1993 (see Appendix C. (2) (c) Special Instructions For the purposes of this guideline -(1) If the offense involved tax evasion or a fraudulent or false return. AND CUSTOMS TAXES) Historical Note: Effective November 1. increase to level 12. TOBACCO.§2T1. – 316 – . If the resulting offense level is less than level 12. increase to level 12. Willful Failure to File Return. EMPLOYMENT TAXES.1.1 (Tax Table) corresponding to the tax loss. Specific Offense Characteristics (1) If the defendant failed to report or to correctly identify the source of income exceeding $10.000 in any year from criminal activity. Supply Information. If the offense involved sophisticated means. Amended effective November 1. Historical Note: Effective November 1. ESTATE TAXES. the tax loss is the total amount of loss that was the object of the offense (i. Tax Evasion.. AND EXCISE TAXES (OTHER THAN ALCOHOL. or 6. amendment 491). INCOME TAXES. or Pay Tax.OFFENSES INVOLVING TAXATION 1. increase by 2 levels. If the resulting offense level is less than level 12. 2009 PART T .

1 Notes: (A) If the offense involved filing a tax return in which gross income was underreported. the tax loss is the aggregate tax loss from the offenses added together. the tax loss is the amount of tax that the taxpayer owed and did not pay. (4) (5) – 317 – . unless a more accurate determination of the tax loss can be made. the tax loss shall be treated as equal to 20% of the gross income (25% if the taxpayer is a corporation) less any tax withheld or otherwise paid. (B) If the offense involved improperly claiming a deduction or an exemption. unless a more accurate determination of the tax loss can be made. The tax loss is not reduced by any payment of the tax subsequent to the commission of the offense. Notes: (A) If the offense involved failure to file a tax return.November 1. (B) If the offense involved (i) conduct described in subdivision (A) of these Notes. the tax loss is the amount of the claimed refund to which the claimant was not entitled. unless a more accurate determination of the tax loss can be made. the tax loss shall be treated as equal to 28% of the unreported gross income (34% if the taxpayer is a corporation) plus 100% of any false credits claimed against tax. the tax loss shall be treated as equal to 28% of the amount of the improperly claimed deduction or exemption (34% if the taxpayer is a corporation) plus 100% of any false credits claimed against tax. the tax loss shall be treated as equal to 28% of the amount of the improperly claimed deduction (34% if the taxpayer is a corporation) plus 100% of any false credits claimed against tax. and (ii) both individual and corporate tax returns. and (ii) both individual and corporate tax returns. or (C) of these Notes. (2) If the offense involved failure to file a tax return. (3) If the offense involved willful failure to pay tax. unless a more accurate determination of the tax loss can be made. the tax loss is the amount of tax that the taxpayer owed and did not pay. (D) If the offense involved (i) conduct described in subdivision (A). the tax loss is the aggregate tax loss from the offenses added together. (B). (C) If the offense involved improperly claiming a deduction to provide a basis for tax evasion in the future. 2009 GUIDELINES MANUAL §2T1. If the offense involved improperly claiming a refund to which the claimant was not entitled.

§ 7201 and willful failure to pay cases under 26 U. The tax loss does not include interest or penalties." its amount is to be determined by the same rules applicable in determining any other sentencing factor. the defendant claims $10.000 x 28%) unless sufficient information is available to make a more accurate assessment of the tax loss. and $2. § 6050I or § 7206(2)). § 7203.000.000 of gross income x 20% = $4. the "presumptions" set forth are to be used unless the government or defense provides sufficient information for a more accurate assessment of the tax loss.000 in false tax credits. the tax loss is treated as $14.C. minus $2. Notes under subsections (c)(1) and (c)(2) address certain situations in income tax cases in which the tax loss may not be reasonably ascertainable.000. If none of the methods of determining the tax loss set forth fit the circumstances of the particular case. all conduct violating the tax laws should be considered as part of the same course of conduct or common – 318 – .600 of tax withheld) unless sufficient information is available to make a more accurate assessment of the tax loss.000.600. 7206 (other than a violation based upon 26 U.S. see Appendix A (Statutory Index).000 of actual gross income minus $40. the amount of the tax loss may be uncertain.000 of false tax credits) unless sufficient information is available to make a more accurate assessment of the tax loss.600 in income tax was withheld by his employer.C.000 when his income was actually $90.C. 7203 (other than a violation based upon 26 U. In cases involving other types of taxes. Application Notes: 1. In determining the total tax loss attributable to the offense (see §1B1. In addition.S.000 of actual gross income minus $60. "Tax loss" is defined in subsection (c). Example 2: A defendant files a tax return reporting income of $60.000 x 28% = $19.600 ($130.3(a)(2)).000 when his income was actually $130. Example 3: A defendant fails to file a tax return for a year in which his salary was $24.000 ($90. Under the note to subsection (c)(2). Although the definition of tax loss corresponds to what is commonly called the "criminal figures. plus $10. the guidelines contemplate that the court will simply make a reasonable estimate based on the available facts. Under Note (A) to subsection (c)(1).800.000 of reported gross income = $50. For additional statutory provision(s). In some instances. §§ 7201. except in willful evasion of payment cases under 26 U.C.200 ($24. the court should use as many methods set forth in subsection (c) and this commentary as are necessary given the circumstances of the particular case. the tax loss is treated as $29. the court should use any method of determining the tax loss that appears appropriate to reasonably calculate the loss that would have resulted had the offense been successfully completed. the tax loss is treated as $2. 2.000 of reported gross income = $70. such as when indirect methods of proof are used. In determining the tax loss attributable to the offense.1 GUIDELINES MANUAL November 1.S. the presumptions in the notes under subsections (c)(1) and (c)(2) do not apply. and 7207.§2T1.C. Example 1: A defendant files a tax return reporting income of $40.S.S. § 6050I). In these situations. Under Note (A) to subsection (c)(1). 2009 Commentary Statutory Provisions: 26 U.

"Criminal activity" means any conduct constituting a criminal offense under federal.November 1. The tax loss attributable to the defendant’s corporate tax return is $34.61. assume the use of 34% with respect to the corporate tax loss and the use of 28% with respect to the individual tax loss." for the purposes of this section. e. 7. Furthermore. through the use of fictitious entities.g.F. – 319 – .S. diverts the funds to the defendant’s own use. The tax loss for the offenses are added together to equal $62. 4. a greater tax loss is obviously more harmful to the treasury and more serious than a smaller one with otherwise similar characteristics.000 ($100. These examples are not intended to be exhaustive. as the potential benefit from the offense increases. "sophisticated means" means especially complex or especially intricate offense conduct pertaining to the execution or concealment of an offense. Tax offenses.— For purposes of subsection (b)(2). or both. and (e) the violation in each instance involves a failure to report or an understatement of a specific source of income. or (ii) the tax rate for the individual tax offense. For purposes of this example. § 61 and 26 C. A "credit claimed against tax" is an item that reduces the amount of tax directly. the sanction necessary to deter also increases. in and of themselves. corporate shells. a "deduction" is an item that reduces the amount of taxable income.000 + $28. and (B) the unreported or diverted amount multiplied by (i) 34%. (c) the violations involve the same or a related series of transactions. Background: This guideline relies most heavily on the amount of loss that was the object of the offense.000 ($34.R. are serious offenses. "Gross income. (b) the defendant uses a consistent method to evade or camouflage income. Conduct such as hiding assets or transactions. in a case in which a defendant fails to report income derived from a corporation on both the defendant’s individual tax return and the defendant’s corporate tax return. For example. 6..000 on the corporation’s tax return.C. backdating documents or using off-shore accounts. In contrast.000 ($100. if sufficient information is available to make a more accurate assessment of that tax rate. local. The following examples are illustrative of conduct that is part of the same course of conduct or common scheme or plan: (a) there is a continuing pattern of violations of the tax laws by the defendant. the defendant. 3.1 scheme or plan unless the evidence demonstrates that the conduct is clearly unrelated.g. or foreign law. the sole owner of a Subchapter C corporation. e. Accordingly. and does not report these funds on the defendant’s individual tax return. the tax loss is the aggregate tax loss from the individual tax offense and the corporate tax offense added together. Sophisticated Means Enhancement. If the offense involved both individual and corporate tax returns. 5. the tax loss is the sum of (A) the unreported or diverted amount multiplied by (i) 28%. if sufficient information is available to make a more accurate assessment of that tax rate. fraudulently understates the corporation’s income in the amount of $100. however. § 1.. state. The tax loss attributable to the defendant’s individual tax return is $28.000). (d) the violation in each instance involves a false or inflated claim of a similar deduction or credit.000 multiplied by 28%). or offshore financial accounts ordinarily indicates sophisticated means. has the same meaning as it has in 26 U. 2009 GUIDELINES MANUAL §2T1. or (ii) the tax rate for the corporate tax offense.000 multiplied by 34%). interest from savings accounts or income from a particular business activity.

Amended effective November 1.2. The increase is expected to be somewhat larger for cases involving more taxes. the number of purely probationary sentences will be reduced. or Pay Tax). 2002 (see Appendix C.1 effective November 1. roughly half of all tax evaders were sentenced to probation without imprisonment. November 1. 1987. amendments 224-227). 1989 (see Appendix C.1 GUIDELINES MANUAL November 1. income taxes are underpaid by approximately $90 billion annually. November 1. and November 1. §2T1. amended effective November 1. amendment 491). 1991 (see Appendix C. Guideline sentences should result in small increases in the average length of imprisonment for most tax cases that involve less than $100. amendment 343). As a result.§2T1. 2009 Under pre-guidelines practice. 1998 (see Appendix C. amendment 343). §2T1. According to estimates current at the time this guideline was originally developed (1987). [Deleted] Historical Note: Section 2T1. Historical Note: Effective November 1. November 1. Supply Information. 1992 (see Appendix C. 2001 (see Appendix C. was deleted by consolidation with §2T1. 1990 (see Appendix C. 1989 (see Appendix C.S. The adjustments in Chapter Three. amendment 468). 1993 (see Appendix C. § 994(i)(2). effective November 1. November 1.C.3 (Fraud and False Statements Under Penalty of Perjury). and November 1. amendment 426). Failure to report criminally derived income is included as a factor for deterrence purposes. The Commission believes that any additional costs of imprisonment that may be incurred as a result of the increase in the average term of imprisonment for tax offenses are inconsequential in relation to the potential increase in revenue. November 1. 1987.3. November 1. while the other half received sentences that required them to serve an average prison term of twelve months. amendment 646). so that the tax loss in such cases will tend to be substantially understated. Part B (Role in the Offense) should be used to make appropriate distinctions.1 effective November 1. 1991 (see Appendix C.000 in tax loss. 1987. amendment 577). 1993 (see Appendix C. November 1. Although tax offenses always involve some planning. – 320 – . amendments 228-230). amendment 617). [Deleted] Historical Note: Section 2T1. An enhancement for offenders who violate the tax laws as part of a pattern of criminal activity from which they derive a substantial portion of their income also serves to implement the mandate of 28 U.2 (Willful Failure To File Return. was deleted by consolidation with §2T1. This guideline is intended to reduce disparity in sentencing for tax offenses and to somewhat increase average sentence length. amendment 491). Criminally derived income is generally difficult to establish. effective November 1. 1993 (see Appendix C. unusually sophisticated efforts to conceal the offense decrease the likelihood of detection and therefore warrant an additional sanction for deterrence purposes. amendment 408). amendment 491). 1989 (see Appendix C. The guideline does not make a distinction for an employee who prepares fraudulent returns on behalf of his employer. 1990 (see Appendix C. amendments 219-223). amended effective November 1. November 1. amendment 343). 1990 (see Appendix C.

If the offense involved sophisticated means. Counseling." Subsection (b)(1) has two prongs. do not apply §3B1. Sophisticated Means.C. or (B) the defendant was in the business of preparing or assisting in the preparation of tax returns.3 (Abuse of Position of Trust or Use of Special Skill).4 §2T1. Willful Failure to File Return. Assisting. resulting from the defendant’s aid. If an enhancement from this subsection applies. If this type of conduct can be shown to have resulted in the filing of false returns (regardless of whether the principals were aware of their falsity).S. assistance. as defined in §2T1. (b) Specific Offense Characteristics (1) If (A) the defendant committed the offense as part of a pattern or scheme from which he derived a substantial portion of his income. such as promotion of a tax shelter scheme. corporate shells.. or Advising Tax Fraud (a) Base Offense Level: (1) (2) Level from §2T4.C. or both.4.—For purposes of subsection (b)(2). e. the defendant may advise other persons to violate their tax obligations through filing returns that find no support in the tax laws. "sophisticated means" means especially complex or especially intricate offense conduct pertaining to the execution or concealment of an offense. Statements. 2009 GUIDELINES MANUAL §2T1. procurance or advice. § 6050I). the "tax loss" is the tax loss. through the use of fictitious entities.1. if there is no tax loss. (2) Commentary Statutory Provision: 26 U. or Other Documents). the misstatements in all such returns will contribute to one aggregate "tax loss. Fraudulent or False Returns. Application Notes: 1.1 (Tax Evasion. increase to level 12. If the resulting offense level is less than level 12. 2.1 (Tax Table) corresponding to the tax loss. or 6.S. For the general principles underlying the determination of tax loss. For purposes of this guideline. Procuring. – 321 – . Supply Information. see §2T1. or Pay Tax. The second prong applies to persons who regularly prepare or assist in the preparation of tax returns for profit. Conduct such as hiding assets or transactions.1(c) and Application Note 1 of the Commentary to §2T1. Aiding. § 7206(2) (other than a violation based upon 26 U. 3. The first prong applies to persons who derive a substantial portion of their income through the promotion of tax schemes. increase by 2 levels.g. increase by 2 levels. or offshore financial accounts ordinarily indicates sophisticated means. In certain instances. through promoting fraudulent tax shelters.November 1.

amendment 577). November 1. amendment 232).C. November 1. amendment 617). apply §2B1. Where no effort is made to defraud the employee. amendment 491).S. amendment 343). Statements. In the event that the employer not only failed to account to the Internal Revenue Service and pay over the tax. 1990 (see Appendix C. it is both tax evasion and a form of embezzlement. Failing to Collect or Truthfully Account for and Pay Over Tax (a) Base Offense Level: Level from §2T4. § 7202. (b) Commentary Statutory Provision: 26 U.§2T1. Property Destruction. Other considerations are similar to those in §2T1. amendments 231 and 303). Background: The offense is a felony that is infrequently prosecuted. but also collected the tax from employees and did not account to them for it. Historical Note: Effective November 1. 2001 (see Appendix C.5 (Fraudulent Returns. 1987. Amended effective November 1. 1987. Historical Note: Effective November 1. amendment 409). 1987. November 1. 1991 (see Appendix C. as must the failure to pay. 1993 (see Appendix C. November 1. 1993 (see Appendix C. November 1. 1998 (see Appendix C. [Deleted] Historical Note: Section 2T1.1.4 GUIDELINES MANUAL November 1. Amended effective November 1.1 effective November 1. Cross Reference (1) Where the offense involved embezzlement by withholding tax from an employee’s earnings and willfully failing to account to the employee for it. the offense is a form of tax evasion. amendment 491). effective November 1. Application Note: 1.1 (Tax Table) corresponding to the tax not collected or accounted for and paid over. The failure to collect or truthfully account for the tax must be willful. 1989 (see Appendix C. §2T1.1 (Theft. amendment 617). – 322 – . and is treated as such in the guidelines. November 1. §2T1. was deleted by consolidation with §2T1.6. or Other Documents). 1989 (see Appendix C. and Fraud) if the resulting offense level is greater than that determined above. 2009 Background: An increased offense level is specified for those in the business of preparing or assisting in the preparation of tax returns and those who make a business of promoting tax fraud because their misconduct poses a greater risk of revenue loss and is more clearly willful. 2001 (see Appendix C.5. Subsection (b)(1) addresses such cases.

Historical Note: Effective November 1.7. they should be treated as never having been deposited. §2T1. 7512(b). It is recommended that the fine be based on the total amount of funds not deposited. amendment 674).C. rather than merely delay. 1987.8 §2T1. Accordingly. imprisonment was unusual.1 (Tax Table) corresponding to the amount not deposited. Amended effective November 1.S. 2. an upward departure may be warranted. although some effort has been made to tie the offense level to the level of taxes that were not deposited.November 1. 7205. Failing to Deposit Collected Taxes in Trust Account as Required After Notice (a) Base Offense Level (Apply the greater): (1) (2) 4. Offenses Relating to Withholding Statements (a) Base Offense Level: 4 Commentary Statutory Provisions: 26 U.S. nor even that taxes have not been paid. payment of taxes.S. Application Notes: 1. This offense should be relatively easy to detect and fines may be feasible. 2004 (see Appendix C. The more serious offense is 26 U. or 5 less than the level from §2T4. the offense level has been set considerably lower than for tax evasion. Historical Note: Effective November 1. §§ 7204. §§ 7215. 2009 GUIDELINES MANUAL §2T1. Background: The offenses are misdemeanors. Under pre-guidelines practice.C. – 323 – . 1987.C. Application Note: 1.8. If funds are deposited and withdrawn without being paid to the Internal Revenue Service.6). If the defendant was attempting to evade. Background: This offense is a misdemeanor that does not require any intent to evade taxes. Commentary Statutory Provisions: 26 U. § 7202 (see §2T1.

3. 355 U.g. the collection of revenue. other than the participants directly involved in the offense. impairing.4. Carruth. If the conduct was intended to encourage persons other than or in addition to co-conspirators to violate the internal revenue laws or impede. 1038 (1984). or defeating the Internal Revenue Service) if that offense level is greater than 10. Obstruct. obstruct. cert. 1021 (9th Cir. 247 F. as appropriate. 1957). The base offense level is the offense level (base offense level plus any applicable specific offense characteristics) from §2T1. an offense involving a "tax protest" group that encourages persons to violate the tax laws.2d 1017. United States v. or collection of revenue. Do not.2d 908.C. increase by 4 levels. such as a husband and wife.9(a)(1) or (2). computation.1 or §2T1.S. GUIDELINES MANUAL November 1. the base offense level is 10. 4. Specific Offense Characteristics If more than one applies. (2) Commentary Statutory Provision: 18 U.. 723 F. See also United States v. impair. 915 (2d Cir. however. . . apply this adjustment if an adjustment from §2T1. impair. 464 U. . Browning.9.4 (whichever guideline most closely addresses the harm that would have resulted had the conspirators succeeded in impeding. denied. denied. This section applies to conspiracies to "defraud the United States by impeding. Otherwise. Impair. or defeat the ascertainment. cert.§2T1. 699 F. or collection of revenue. impairing. or an offense involving the marketing of fraudulent tax shelters or schemes)." United States v. Klein. obstructing and defeating . 1983). – 324 – 2. increase by 2 levels. who merely evade taxes jointly or file a fraudulent return. obstructing. Application Notes: 1.2d 1544 (11th Cir.S. 1984). Specific offense characteristics from §2T1. obstruct.1 or §2T1. 2009 Conspiracy to Impede. or 10. It does not apply to taxpayers. to violate the tax laws (e. assessment.9(b) are to be applied to the base offense level determined under §2T1.S. 924 (1958).4(b)(1) is applied. or Defeat Tax (a) Base Offense Level (Apply the greater): (1) (2) (b) Offense level determined from §2T1. or defeat the ascertainment. assessment. Subsection (b)(2) provides an enhancement where the conduct was intended to encourage persons. computation. § 371.9 §2T1. use the greater: (1) If the offense involved the planned or threatened use of violence to impede.

S. §2T2. November 1. 5691. Rather. 1989 (see Appendix C. Historical Note: Effective November 1.November 1. 5607.1. §§ 5601-5605. Because these offenses are no longer a major enforcement priority. Application Notes: 1. 5691. chiefly 26 U. Amended effective November 1. 1987. – 325 – . 2009 GUIDELINES MANUAL §2T2. or that the defendant was attempting to evade. For additional statutory provision(s). making it quite difficult to evaluate the extent of the revenue loss caused. 5661. For purposes of this guideline. evasion or attempted evasion of taxes.C. where the essence of the conduct is tax evasion or a regulatory violation. 5671.1 Background: This type of conspiracy generally involves substantial sums of money. §§ 5601-5605. ALCOHOL AND TOBACCO TAXES Introductory Commentary This section deals with offenses contained in Parts I-IV of Subchapter J of Title 26. Historical Note: Effective November 1. the conduct is dealt with by dividing offenses into two broad categories: tax evasion offenses and regulatory offenses. 5762.S. the "tax loss" is the amount of taxes that the taxpayer failed to pay or attempted not to pay. 1987. see Appendix A (Statutory Index). Non-Payment of Taxes (a) Base Offense Level: Level from §2T4. * * * * * 2. amendments 233 and 234). It also typically is complex and may be far-reaching. 5661. Additional specific offense characteristics are included because of the potential for these tax conspiracies to subvert the revenue system and the danger to law enforcement agents and the public. no effort has been made to provide a section-by-section set of guidelines.C. 1993 (see Appendix C.1 (Tax Table) corresponding to the tax loss. 5608. 5608. amendment 491). 5671. and 5762. 5607. provided the conduct constitutes non-payment. Commentary Statutory Provisions: 26 U. The tax loss is the total amount of unpaid taxes that were due on the alcohol and/or tobacco.

C. amendment 674). such as certain uncertified diamonds. more specific criminal statutes apply to most of these offenses. Background: Prosecutions of this type are infrequent. 548. 547. §2T2. and 3907. 1987.S. amendment 359). 551.§2T2. Historical Note: Effective November 1. 1915 and 19 U. § 5601(a)(1). Other. 1987. 1708(b). – 326 – . but is not intended to deal with the importation of other types of contraband. amendment 685). * * * * * 3. 1990 (see Appendix C. theft or fraud) may warrant an upward departure.g. 2006 (see Appendix C. 1436. Historical Note: Effective November 1.1 2. CUSTOMS TAXES Introductory Commentary This Subpart deals with violations of 18 U. the importation of which is prohibited or restricted for non-economic reasons. or for departing upward if there is not another more specific applicable guideline. 541-545. 5603-5605. 550. 5671.C. firearms or pelts of endangered species.C. GUIDELINES MANUAL November 1. amendment 453). November 1.S. 26 U.2. For additional statutory provision(s). if applicable. 1987. It is intended to deal with some types of contraband. 5762.C. Historical Note: Effective November 1. 1464. see Appendix A (Statutory Index). Background: The most frequently prosecuted conduct violating this section is operating an illegal still. 1992 (see Appendix C. 2004 (see Appendix C. §§ 496.S. and is designed to address violations involving revenue collection or trade regulation. Importation of contraband or stolen goods not specifically covered by this Subpart would be a reason for referring to another. or other items such as obscene material. Regulatory Offenses (a) Base Offense Level: 4 Commentary Statutory Provisions: 26 U. 2009 Offense conduct directed at more than tax evasion (e. November 1. 5661. §§ 283. such as drugs. Amended effective November 1. Amended effective November 1.S. 1465. §§ 5601. provided the conduct is tantamount to a record-keeping violation rather than an effort to evade payment of taxes.. more specific guideline. 1586(e).

547. Evading Import Duties or Restrictions (Smuggling). 1436. increase to level 12. (2) (3) For purposes of this guideline.S.000.C. A sentence based upon an alternative measure of the "duty" evaded. 3907. 1915. (c) Cross Reference (1) If the offense involves a contraband item covered by another offense guideline. if the tax loss did not exceed $100.1 (Tax Table) corresponding to the tax loss. Particular attention should be given to those items for which entry is prohibited. A sentence at or near the minimum of the guideline range typically would be appropriate for cases involving tourists who bring in items for their own use.1. Especially when such items are harmful or protective quotas are in effect. the duties evaded on such items may not adequately reflect the harm to society or protected industries resulting from their importation. or restricted. such as the increase in market value due to importation. 1464. increase by 2 levels. Such conduct generally poses a lesser threat to revenue collection. Commentary Statutory Provisions: 18 U. 2009 GUIDELINES MANUAL §2T3.000. . an upward departure may be warranted. or 5. 19 U. In such instances. 541-545. apply that offense guideline if the resulting offense level is greater than that determined above. 551. Sophisticated Means. "sophisticated means" means especially complex or especially intricate offense conduct pertaining to the execution or – 327 – 2. the "tax loss" is the amount of the duty. §§ 496. if the tax loss exceeded $100 but did not exceed $1. if the tax loss exceeded $1.—For purposes of subsection (b)(1). might be considered. Application Notes: 1. Receiving or Trafficking in Smuggled Property (a) Base Offense Level: (1) The level from §2T4. (b) Specific Offense Characteristic (1) If the offense involved sophisticated means. limited. or 25 percent of the items’ fair market value in the United States if the increase in market value due to importation is not readily ascertainable.November 1. 548. If the resulting offense level is less than level 12. or 4. 1586(e). 550.S. 1465.1 §2T3. 1708(b). see Appendix A (Statutory Index). For additional statutory provision(s). §§ 283. 3.C.

000 More than $2. January 25. 1998 (see Appendix C. 1991 (see Appendix C. 1989 (see Appendix C. or offshore financial accounts ordinarily indicates sophisticated means. November 1.2. 2001 (see Appendix C. November 1.000 Offense Level 6 8 10 12 14 16 18 20 22 24 26 28 30 32 34 36.000 More than $400.§2T3. amendment 491). 2003 (see Appendix C.000 More than $7. amendment 236) and November 1. 1992 (see Appendix C.000.000. November 1. amendment 237). 1989 (see Appendix C. through the use of fictitious entities. Amended effective November 1. 653). 2003 (see Appendix C. Conduct such as hiding assets or transactions. amendment 453). November 1. 1992 (see Appendix C. 1987. 1987.000 More than $200. was deleted by consolidation with §2T3.000 More than $400. 1987. TAX TABLE §2T4.000 More than $100.500. amendment 410). effective November 1. or both. November 1. amendment 617).000. 2006 (see Appendix C. [Deleted] Historical Note: Section 2T3. amendment 647).000 More than $200. Tax Table Tax Loss (Apply the Greatest) (A) (B) (C) (D) (E) (F) (G) (H) (I) (J) (K) (L) (M) (N) (O) (P) $2. Historical Note: Effective November 1.2 (Receiving or Trafficking in Smuggled Property). amendment 453). amended effective November 1. – 328 – .000 More than $80. amendment 235). amendment 410). November 1. 1989 (see Appendix C. 1991 (see Appendix C.000 More than $1. corporate shells.000 More than $20.000.000.500 More than $30.000 More than $50.1 effective November 1. amendment 617).000. * * * * * 4.000 or less More than $2. §2T3. 1993 (see Appendix C. Historical Note: Effective November 1. 2009 concealment of an offense. November 1. amendment 577). November 1. amendment 685).000 More than $5.000 More than $12.1.1 GUIDELINES MANUAL November 1. 2001 (see Appendix C.000. Amended effective November 1.

(b) (2) (3) (B) (c) Cross Reference (1) When an attempt. If the statute treats solicitation of the substantive offense identically with the substantive offense.OTHER OFFENSES 1. (d) Special Instruction (1) Subsection (b) shall not apply to: – 329 – . SOLICITATIONS §2X1. unless the defendant or a coconspirator completed all the acts the conspirators believed necessary on their part for the successful completion of the substantive offense or the circumstances demonstrate that the conspirators were about to complete all such acts but for apprehension or interruption by some similar event beyond their control.1. do not apply subdivision (A) above. apply that guideline section. solicitation. CONSPIRACIES. If a conspiracy.. 2009 GUIDELINES MANUAL §2X1. i. Specific Offense Characteristics (1) If an attempt. plus any adjustments from such guideline for any intended offense conduct that can be established with reasonable certainty.November 1. decrease by 3 levels. (A) If a solicitation.1 PART X . unless the defendant completed all the acts the defendant believed necessary for successful completion of the substantive offense or the circumstances demonstrate that the defendant was about to complete all such acts but for apprehension or interruption by some similar event beyond the defendant’s control. decrease by 3 levels unless the person solicited to commit or aid the substantive offense completed all the acts he 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 such person’s control. Solicitation. or Conspiracy (Not Covered by a Specific Offense Guideline) (a) Base Offense Level: The base offense level from the guideline for the substantive offense.e. Attempt. or conspiracy is expressly covered by another offense guideline section. ATTEMPTS. decrease by 3 levels. the offense level for solicitation is the same as that for the substantive offense.

2D1.2. 2D2. § 2339A. 372. 2D2. 2D1. 2C1.S.1.S. 2D1. 2D1. 2D2. § 1363. a federal crime of terrorism as defined in 18 U. (a)(9). 2D3.5.2. §§ 371.1. 18 U. 2D1. 2D1.S. § 2332b(g)(5): 18 U. 2D1. 2D1.2.12. §2N1.S. Commentary Statutory Provisions: 18 U. 2D1. For additional statutory provision(s).1 (A) GUIDELINES MANUAL November 1. 18 U. 2D1. Application Notes: 1. or was intended to promote. 2A3.S.S.1.10.8. 2271. §2Q1.1. 2A3.C. Offense guidelines that expressly cover attempts include: §§2A2. § 2332a.1. and solicitations are expressly covered by other offense guidelines.S.C.S. 2D2.6.13.5. 18 U. 2D1. 2D3.2.3. (B) Any of the following offenses: 18 U. 2A4. if such offense involved. 2282B. § 1362. Offense guidelines that expressly cover conspiracies include: §2A1. 2D1. 2D1.1.7.1.C.1. 2282A. § 81.1.S.7.C.2.C.6. and 49 U. 2A3.C.4.9. § 60123(b).2. §2M6.1. see Appendix A (Statutory Index). 2D1.1. § 930(c). and 18 U. § 1992(a)(1)-(a)(7).2.C.S. 18 U.1. 18 U. 2D1.2.C. 2D3.C.C. § 32.§2X1. 2D3. 2D1.S. §§2D1. §§2C1. 18 U. conspiracies.5.9. 2D1.4. 2D1. §2E5.13.11. 2D1. 2009 Any of the following offenses.11.C.C. – 330 – . 2A5. § 46505.S.8.1.S.C. 2A3. §§2D1. 49 U. Certain attempts. § 2340A. (a)(10).10. 2D1.S. § 46504.12.2. 49 U.C.

§§2C1. the value of the items that the defendant attempted to steal would be considered. or (b)(3)(A)).1(b)(1). §2M6.1(b)(1). 2. Sometimes. the substantive offense was substantially completed or was interrupted or prevented on the verge of completion by the intercession of law enforcement authorities or the victim.000. however. In an attempted theft. see §2X5. attempting. "Substantive offense.2.5. Under §2X1.1.000 minus 3 levels. means the offense that the defendant was convicted of soliciting. the arrest occurs well before the defendant or any co- 3. §2E5.1(a). hostage taking. with the enhancement for possession of a weapon. If the substantive offense is not covered by a specific guideline. the offense level ordinarily would not include aggravating factors regarding possible injury to others. the specific offense characteristic for physical restraint would be added. the offense level for the count (or group of closely related multiple counts) is whichever of the following is greater: the offense level for the intended offense minus 3 levels (under §2X1.1.1 §2H1. Speculative specific offense characteristics will not be applied. whether the 3-level reduction under §2X1.000. the participants may have completed (or have been about to complete but for apprehension or interruption) all of the acts necessary for the successful completion of part. but not all.1 (Other Offenses). no reduction of the offense level is warranted. where the intended offense was the theft of $800. 4. §2T1. – 331 – . if two defendants are arrested during the conspiratorial stage of planning an armed bank robbery. or obtaining a large sum of money. whichever is greater. In such cases.9.1. the offense level is the offense level for the theft of $800. (b)(2). In the case of multiple counts that are not closely related counts. of the intended offense. (b)(2). or (b)(3)(A) applies is determined separately for each count. The offense level would simply reflect the level applicable to robbery of a financial institution. If it was established that the defendants actually intended to physically restrain the teller. 2C1. In such cases.1.000 but the participants completed (or were about to complete) only the acts necessary to steal $30. 2009 GUIDELINES MANUAL §2X1." as used in this guideline.November 1. or conspiring to commit. But the only specific offense characteristics from the guideline for the substantive offense that apply are those that are determined to have been specifically intended or actually occurred. or the offense level for the theft of $30. discharge of a weapon. Offense guidelines that expressly cover solicitations include: §2A1. Background: In most prosecutions for conspiracies or attempts. because such factors would be speculative. For example. the base offense level will be the same as that for the substantive offense. In certain cases. For example. or the offense level for the part of the offense for which the necessary acts were completed (or about to be completed but for apprehension or interruption).

2284. amendment 637)."underlying offense" means the offense the defendant is convicted of aiding or abetting. November 1. amendment 655). 2007 (see Appendix C.1 GUIDELINES MANUAL November 1.1. amendment 42).C. November 1. November 1. Under such circumstances. 2339C(a)(1)(A). 2339A. November 1. 1987. Historical Note: Effective November 1. 1989 (see Appendix C. or in the case of a violation of 18 U. amendments 699 and 700). amendments 311 and 327).S. November 1. 2007 (see Appendix C. amendment 496).C. 2003 (see Appendix C. 2004 (see Appendix C. "underlying offense" means the offense the defendant is convicted of having materially supported or provided or collected funds for. amendment 700). amendment 411). Background: A defendant convicted of aiding and abetting is punishable as a principal. 2001 (see Appendix C. November 1. Amended effective January 15. November 1. § 2339A or § 2339C(a)(1)(A). 1988 (see Appendix C.—For purposes of this guideline. Historical Note: Effective November 1. 18 U. November 1. amendment 637). 2009 conspirator has completed the acts necessary for the substantive offense. § 2.1. Application Note: 1. November 1. prior to or during its commission. An adjustment for a mitigating role (§3B1.S. Aiding and Abetting The offense level is the same level as that for the underlying offense. Definition. This section provides that aiding and abetting the commission of an offense has the same offense level as the underlying offense. amendments 238-242). 1993 (see Appendix C. AIDING AND ABETTING §2X2. 2002 (see Appendix C. ACCESSORY AFTER THE FACT Accessory After the Fact (a) Base Offense Level: §2X3. a reduction of 3 levels is provided under §2X1.C. Commentary Statutory Provisions: 18 U.1(b)(1) or (2).2) may be applicable. 1990 (see Appendix C.§2X1.S. 1992 (see Appendix C. §§ 2. November 1. * * * * * 3. 2339. 1987. amendment 669). November 1. – 332 – . Amended effective November 1. 1990 (see Appendix C. amendment 633). amendment 359). amendments 444 and 447). * * * * * 2. 1991 (see Appendix C. 2002 (see Appendix C. November 1.

In any case in which the conduct is limited to harboring a fugitive. amendment 243). 2003 (see Appendix C.S.S.November 1.C. (A) The base offense level under this guideline shall be not more than level 30. Apply the base offense level plus any applicable specific offense characteristics that were known..S. "underlying offense" means the violation of 18 U. § 2339B with respect to which the material support or resources were concealed or disguised. § 2339C(a)(1)(A)). Application of Mitigating Role Adjustment.S. Historical Note: Effective November 1. 1071. November 1. the base offense level under this guideline shall be not more than level 20. § 2339A. 1072. The limitation in subdivision (B) shall not apply in any case in which (i) the defendant is convicted under 18 U.e.C. Definition.C. except as provided in subdivisions (2) and (3). § 2339 or § 2339A or who committed any offense involving or intending to promote a federal crime of terrorism. or in the case of a violation of 18 U. 2002 (see Appendix C. § 2332b(g)(5). §§ 3.3 (Relevant Conduct). amendment 496). November 1.C. 2339A. 1987. by the defendant. 2. November 1. see Application Note 10 of the Commentary to §1B1. Amended effective November 1. – 333 – . as defined in 18 U. except as provided in subdivision (B).—For purposes of this guideline. (2) (3) (B) (C) Commentary Statutory Provisions: 18 U. 2007 (see Appendix C. 2009 GUIDELINES MANUAL §2X3. or (ii) the conduct involved harboring a person who committed any offense listed in 18 U. Application Notes: 1. 1991 (see Appendix C. 2339. November 1. 2284.2 (Mitigating Role) normally would not apply because an adjustment for reduced culpability is incorporated in the base offense level. or in the case of a violation of 18 U. November 1.S.—The adjustment from §3B1. 1993 (see Appendix C. "underlying offense" means the offense as to which the defendant is convicted of being an accessory.C. § 2339 or § 2339A.C. in connection with the concealment of or an escape from that offense).S. 2339C(c)(2)(A). (c)(2)(B) (but only with respect to funds known or intended to have been provided or collected in violation of 18 U. "underlying offense" means the offense the defendant is convicted of having materially supported after its commission (i. amendment 655). amendment 380). The base offense level under this guideline shall be not less than level 4.S.1 (1) 6 levels lower than the offense level for the underlying offense.C. amendment 637). other than a case described in subdivision (C).S. the base offense level under this guideline shall be not more than level 30. or reasonably should have been known. In such a case. amendment 700). 757. 1989 (see Appendix C. § 2339C(c)(2)(A).C. as provided in subdivision (A).

S. except that any guidelines and policy statements that can be applied meaningfully in the absence of a Chapter Two offense guideline shall remain applicable. 2009 * * * * * 4. § 1841(b).C. 1993 (see Appendix C. or reasonably should have been known. amendment 244). MISPRISION OF FELONY §2X4. Amended effective November 1. Application Notes: 1. but in no event less than 4. or more than 19.3 (Relevant Conduct). Amended effective November 1. §2X5. Other Felony Offenses If the offense is a felony for which no guideline expressly has been promulgated.§2X4. Apply the base offense level plus any applicable specific offense characteristics that were known.C. § 3553 shall control.C. "Underlying offense" means the offense as to which the defendant is convicted of committing the misprision. § 1841(a)(1). * * * * * 5. the provisions of 18 U. 1987. Historical Note: Effective November 1. § 1841(a)(1) and listed in 18 U.C. The adjustment from §3B1. November 1.S. Commentary Statutory Provision: 18 U. If there is not a sufficiently analogous guideline. ALL OTHER FELONY OFFENSES AND CLASS A MISDEMEANORS Historical Note: Effective November 1. by the defendant. amendment 685).S. Misprision of Felony (a) Base Offense Level: 9 levels lower than the offense level for the underlying offense. amendment 496).S.1 GUIDELINES MANUAL November 1. § 4. apply the most analogous offense guideline. – 334 – . apply the guideline that covers the conduct the defendant is convicted of having engaged in. 1989 (see Appendix C.1.C.S.2 (Mitigating Role) normally would not apply because an adjustment for reduced culpability is incorporated in the base offense level. If the defendant is convicted under 18 U. see Application Note 10 of the Commentary to §1B1. 2006 (see Appendix C.1. 2. as that conduct is described in 18 U. 1987.

Chapter Five. For Class A misdemeanor offenses that have not been referenced in Appendix A. Chapter Six. 2. In a case in which there is no sufficiently analogous guideline. Part K (Departures).—Guidelines and policy statements that can be applied meaningfully in the absence of a Chapter Two offense guideline include: §5B1. the specific guidelines that have been promulgated cover the type of criminal behavior that most such offenses proscribe. 2009 GUIDELINES MANUAL §2X5.3 (Conditions of Probation). § 1841(b) and that results in the death of. §5E1.3 (Conditions of Supervised Release).1 (Imposition of a Term of Supervised Release). Application Notes: 1. apply §2X5. Part H (Specific Offender Characteristics).—If the defendant is convicted under 18 U.1 Commentary Statutory Provision: 18 U.e. Nonetheless. In General.November 1. §5E1. Application of §2X5. the applicable Chapter Two guideline would be §2A3. For example. Chapter Six.3 (Special Assessments).S.. a child in utero at the time of the offense of conviction.2 (Term of Supervised Release). § 13 (Assimilative Crimes Act) – 335 – . §5E1.C. are not listed in the Statutory Index or in any of the lists of Statutory Provisions that follow each offense guideline.— (A) In General. Chapter Five. § 1841(a)(1). The court is required to determine if there is a sufficiently analogous offense guideline. §5G1. (B) 3. the child in utero.4 (Forfeiture). i. an upward departure may be warranted if the offense level under the applicable guideline does not adequately account for the death of. or serious bodily injury to.S.C. Part F (Sentencing Options). and. Chapter Five.C. Background: Many offenses. Convictions under 18 U. §5D1. Attempt to Commit Criminal Sexual Abuse). § 1841(a)(1).C. Part A (Sentencing Procedures). §5D1.2. to apply the guideline that is most analogous.S.S. the conduct of which the defendant is convicted that violates a specific provision listed in 18 U. if the defendant committed aggravated sexual abuse against the unborn child’s mother and it caused the death of the child in utero.2 (Class A Misdemeanors (Not Covered by Another Specific Offense Guideline)).C.1 (Restitution).1 (Criminal Sexual Abuse. the Chapter Two offense guideline that applies is the guideline that covers the conduct the defendant is convicted of having engaged in. § 1841(a)(1). especially assimilative crimes. The sentencing guidelines apply to convictions under 18 U. Upward Departure Provision. §5D1.C.S.C.3 (Imposition of a Sentence on a Defendant Subject to an Undischarged Term of Imprisonment). § 1841(a)(1).S. § 3553 control. Chapter Five.S. Part B (Plea Agreements). if so. Part J (Relief from Disability). or bodily injury to. the provisions of 18 U.—For offenses under 18 U.—This guideline applies only to felony offenses not referenced in Appendix A (Statutory Index).

2004 (see Appendix C.S. amendment 685). * * * * * 6. §2X5. amendment 721). §2X6. amendment 699). Historical Note: Effective November 1. – 336 – . §§ 1365(f). Historical Note: Effective November 1.1. Do not apply this guideline to a Class A misdemeanor that has been specifically referenced in Appendix A to another Chapter Two guideline. 2008 (see Appendix C. November 1.C. Amended effective November 1. OFFENSES INVOLVING USE OF A MINOR IN A CRIME OF VIOLENCE Historical Note: Effective November 1.C. 2007 (see Appendix C. This guideline also applies to Class A misdemeanor offenses that have not been referenced in Appendix A. 49 U. 1988 (see Appendix C. amendment 685).S.C.S. In General. amendment 569). 2009 and 18 U. 1801. § 25. Amended effective June 15. amendment 412). as amended by section 1602 of Public Law 101-647.C. § 31310. 1991 (see Appendix C.C. 14133. § 3551(a). §§ 1129(a).2.C. see 18 U. Commentary Statutory Provision: 18 U.—This guideline applies to Class A misdemeanor offenses that are specifically referenced in Appendix A (Statutory Index) to this guideline. Class A Misdemeanors (Not Covered by Another Specific Offense Guideline) (a) Base Offense Level: 6 Commentary Statutory Provisions: 18 U. 2006 (see Appendix C. 42 U.S. 1987.S. 2006 (see Appendix C.§2X5. § 1153 (Indian Major Crimes Act). November 1. Application Note: 1. amendment 43). 1997 (see Appendix C.S. November 1. Use of a Minor in a Crime of Violence (a) Base Offense Level: 4 plus the offense level from the guideline applicable to the underlying crime of violence.1 GUIDELINES MANUAL November 1. November 1. amendment 674).

2. 2009 GUIDELINES MANUAL §2X7.S. OFFENSES INVOLVING BORDER TUNNELS AND SUBMERSIBLE AND SEMI-SUBMERSIBLE VESSELS Historical Note: Effective November 1. – 337 – .C.1.—For purposes of this guideline. § 555(b). Multiple Counts.C.4. if the defendant was convicted under 18 U.S.—Do not apply the adjustment under §3B1. 4 plus the offense level applicable to the underlying smuggling offense. Border Tunnels and Subterranean Passages (a) Base Offense Level: (1) If the defendant was convicted under 18 U. 2007 (see Appendix C.November 1.C. If the resulting offense level is less than level 16.2 (Groups of Closely Related Counts). Definition. 3.C. amendment 728). § 25 and the underlying crime of violence.2. 16. (2) (3) Commentary Statutory Provision: 18 U. increase to level 16. if the defendant was convicted under 18 U.4 (Using a Minor to Commit a Crime). the counts shall be grouped pursuant to subsection (a) of §3D1.S. Inapplicability of §3B1. §2X7. § 555(a).C. Amended effective November 1. 2004 (see Appendix C. (B) Historical Note: Effective November 1.1 Application Notes: 1.S. § 555(c). Multiple counts involving the use of a minor in a crime of violence shall not be grouped under §3D1.S. 2009 (see Appendix C. § 555. amendment 674). amendment 700). "underlying crime of violence" means the crime of violence as to which the defendant is convicted of using a minor. or 8.— (A) In a case in which the defendant is convicted under both 18 U. * * * * * 7.

Submersible and Semi-Submersible Vessels (a) (b) Base Offense Level: 26 Specific Offense Characteristic (1) (Apply the greatest) If the offense involved— (A) a failure to heave to when directed by law enforcement officers. increase by 4 levels. 2009 Definition. (B) (C) Commentary Statutory Provision: 18 U. increase by 8 levels. Amended effective November 1. § 2285.S. (B) Background: This guideline implements the directive to the Commission in section 103 of Public Law 110–407. or the sinking of the vessel. 2008 (see Appendix C. an attempt to sink the vessel.1 Application Note: 1. §2X7.2. Upward Departure Provisions.§2X7.C. Historical Note: Effective November 1. The offense involved use of the vessel as part of an ongoing criminal organization or enterprise. increase by 2 levels. "underlying smuggling offense" means the smuggling offense the defendant committed through the use of the tunnel or subterranean passage. amendment 724). GUIDELINES MANUAL November 1. – 338 – . Application Note: 1. amendment 700). amendment 728).C.—An upward departure may be warranted in any of the following cases: (A) The defendant engaged in a pattern of activity involving use of a submersible vessel or semi-submersible vessel described in 18 U. 2007 (see Appendix C.S. 2009 (see Appendix C. § 2285 to facilitate other felonies.—For purposes of this guideline. Historical Note: Effective November 1.

disability.VICTIM-RELATED ADJUSTMENTS Introductory Commentary The following adjustments are included in this Part because they may apply to a wide variety of offenses.1(b)(1) applies. do not apply subsection (a) if an adjustment from §2H1. "vulnerable victim" means a person (A) who is a victim of the offense of conviction and any conduct for which the defendant is accountable under §1B1. 2. (b) (2) (c) Special Instruction (1) Subsection (a) shall not apply if an adjustment from §2H1. In such cases. Commentary Application Notes: 1. Note that special evidentiary requirements govern the application of this subsection. 2009 GUIDELINES MANUAL §3A1. §3A1.1 CHAPTER THREE . 1987. the court at sentencing determines beyond a reasonable doubt that the defendant intentionally selected any victim or any property as the object of the offense of conviction because of the actual or perceived race. national origin. 1990 (see Appendix C. Historical Note: Effective November 1. or sexual orientation of any person. increase by 3 levels. Hate Crime Motivation or Vulnerable Victim (a) If the finder of fact at trial or. increase by 2 levels.1. Moreover.1(b)(1) applies. and (B) the offense involved a large number of vulnerable victims. increase the offense level determined under subdivision (1) by 2 additional levels. If (A) subdivision (1) applies. (1) If the defendant knew or should have known that a victim of the offense was a vulnerable victim.November 1. Amended effective November 1. gender. ethnicity. For purposes of subsection (b). Subsection (a) applies to offenses that are hate crimes. amendment 344).3 – 339 – . Do not apply subsection (a) on the basis of gender in the case of a sexual offense. in the case of a plea of guilty or nolo contendere. this factor is taken into account by the offense level of the Chapter Two offense guideline. color.ADJUSTMENTS PART A . religion.

November 1. religion. 1990 (see Appendix C. amendment 344). 3. color. Background: Subsection (a) reflects the directive to the Commission. Do not. gender. apply subsection (b) in a case in which subsection (a) applies unless a victim of the offense was unusually vulnerable for reasons unrelated to race. amendment 595). an upward departure may be warranted. for example. this subsection would not be applied unless the victim was unusually vulnerable for reasons unrelated to age.2. for example. But it would not apply in a case in which the defendant sold fraudulent securities by mail to the general public and one of the victims happened to be senile. gender. If an enhancement from subsection (b) applies and the defendant’s criminal history includes a prior sentence for an offense that involved the selection of a vulnerable victim. amendment 245). Subsection (b) applies to offenses involving an unusually vulnerable victim in which the defendant knows or should have known of the victim’s unusual vulnerability. 1987. Amended effective November 1. Historical Note: Effective November 1. Similarly. amendment 454). physical or mental condition.. a bank teller is not an unusually vulnerable victim solely by virtue of the teller’s position in a bank. 1989 (see Appendix C.1 GUIDELINES MANUAL November 1. November 1. a primary motivation for the offense was the race. color. national origin. to provide an enhancement of not less than three levels for an offense when the finder of fact at trial determines beyond a reasonable doubt that the defendant had a hate crime motivation (i. 4. 2000 (see Appendix C. The adjustments from subsections (a) and (b) are to be applied cumulatively. 1995 (see Appendix C. 1997 (see Appendix C. however. disability. in the case of a plea of guilty or nolo contendere. contained in Section 280003 of the Violent Crime Control and Law Enforcement Act of 1994. the instruction to the Commission in section 6(c)(3) of Public Law 105-184. §3A1. Subsection (b)(2) implements. (B) a former government officer or employee. or who is otherwise particularly susceptible to the criminal conduct. 1998 (see Appendix C. religion. in a broader form. November 1. or sexual orientation.§3A1. disability. November 1. amendment 587). in a fraud case in which the defendant marketed an ineffective cancer cure or in a robbery in which the defendant selected a handicapped victim. ethnicity. national origin. November 1. For example. amendment 521). and (B) who is unusually vulnerable due to age. or (C) a member of the immediate family of a – 340 – . the Commission has broadened the application of this enhancement to include offenses that. November 1. or sexual orientation of the victim). Official Victim (Apply the greatest): (a) If (1) the victim was (A) a government officer or employee. ethnicity. 1992 (see Appendix C.e. To avoid unwarranted sentencing disparity based on the method of conviction. the court at sentencing determines are hate crimes. The adjustment would apply. 2009 (Relevant Conduct). if the offense guideline provides an enhancement for the age of the victim. amendment 564). Do not apply subsection (b) if the factor that makes the person a vulnerable victim is incorporated in the offense guideline.

Application of Subsection (c). or the government. means that the offense of conviction was motivated by the fact that the victim was a government officer or employee. Nonapplicability in Case of Incorporation of Factor in Chapter Two.— (A) In General. committed in the course of. in a manner creating a substantial risk of serious bodily injury. for purposes of subsections (a) and (b). If. or knowing or having reasonable cause to believe that a person was a prison official. This adjustment would not apply. . Commentary Application Notes: 1. assaulted such officer during the course of the offense or immediate flight therefrom. or in immediate flight following. while the defendant (or a person for whose conduct the defendant is otherwise accountable) was in the custody or – 341 – 2.1(a)) that takes such conduct into account. 2009 GUIDELINES MANUAL §3A1. 4. (c) (2) increase by 6 levels.4 (Obstructing or Impeding Officers). and the applicable Chapter Two guideline is from Chapter Two. increase by 3 levels. 3.November 1. agency.—This guideline applies when specified individuals are victims of the offense. Applicability to Certain Victims. for example. another offense. or a member of the immediate family thereof. assaulted such official while the defendant (or a person for whose conduct the defendant is otherwise accountable) was in the custody or control of a prison or other correctional facility. the defendant or a person for whose conduct the defendant is otherwise accountable— (1) knowing or having reasonable cause to believe that a person was a law enforcement officer. or (ii) against a prison official. This guideline does not apply when the only victim is an organization. increase by 6 levels. This adjustment also would not apply in the case of a robbery of a postal employee because the offense guideline for robbery contains an enhancement (§2B3.—Subsection (c) applies in circumstances tantamount to aggravated assault (i) against a law enforcement officer. and (2) the offense of conviction was motivated by such status.—Do not apply this adjustment if the offense guideline specifically incorporates this factor.2 person described in subdivision (A) or (B). Part A (Offenses Against the Person).—"Motivated by such status". (b) If subsection (a)(1) and (2) apply. where both the defendant and victim were employed by the same government agency and the offense was motivated by a personal dispute. Application of Subsections (a) and (b). The only offense guideline in Chapter Two that specifically incorporates this factor is §2A2.

amendments 246-248). but not including an inmate) authorized to act on behalf of a prison or correctional facility. 1987. 2009 control of a prison or other correctional facility. officer.1 (Application Instructions). 2. as well as actual serious bodily injury (or more serious injury) if it occurs. 2004 (see Appendix C.g. (ii) is physically away from the prison or correctional facility while on a pass or furlough. For example.e.§3A1. §3A1. amendment 455).3. Upward Departure Provision. 1988 (see Appendix C. The defendant also shall be deemed to be in the custody or control of a prison or other correctional facility while the defendant is in the status of having escaped from that prison or correctional facility. or (iii) is in custody at a community corrections center. 1992 (see Appendix C. While subsection (c) may apply in connection with a variety of offenses that are not by nature targeted against official victims. or volunteer. 2002 (see Appendix C. Do not apply this adjustment where the offense guideline specifically incorporates this factor.2 GUIDELINES MANUAL November 1. such as the President or the Vice President of the United States. Amended effective January 15. under contract. amendment 663). employee.. November 1.—If the official victim is an exceptionally high-level official. an upward departure may be warranted due to the potential disruption of the governmental function. a defendant is in the custody or control of a prison or other correctional facility if the defendant (i) is on a work detail outside the security perimeter of the prison or correctional facility. independent contractor. 1989 (see Appendix C. this enhancement would be applicable to any of the following: (i) an individual employed by a prison as a corrections officer. or similar facility. 5. provides medical services to prisoners in a prison health facility. custody with no significant physical restraint. amendment 44). "Physically restrained" is defined in the Commentary to §1B1. its applicability is limited to assaultive conduct against such official victims that is sufficiently serious to create at least a "substantial risk of serious bodily injury". "Substantial risk of serious bodily injury" includes any more serious injury that was risked.—For purposes of subsection (c): "Custody or control" includes "non-secure custody". For example. "Prison official" means any individual (including a director. this – 342 – . Historical Note: Effective November 1. November 1. Restraint of Victim If a victim was physically restrained in the course of the offense. or where the unlawful restraint of a victim is an element of the offense itself (e. and (iii) a nurse who. amendment 643). November 1. Commentary Application Notes: 1. community treatment center. increase by 2 levels. "halfway house". (B) Definitions.. November 1. i. (ii) an individual employed by a prison as a work detail supervisor.

S.— Under subsection (b).C. Upward Departure Provision.4 (Abduction or Unlawful Restraint). or to have been intended to promote. increase to level 32.November 1. Abduction. an upward departure may be warranted.—By the terms of the directive to the Commission in section 730 of the Antiterrorism and Effective Death Penalty Act of 1996. Computation of Criminal History Category. Harboring. Concealing. or was intended to promote. rather than to influence or affect the conduct of government by intimidation or coercion.4 adjustment does not apply to offenses covered by §2A4. except that the sentence resulting from such 2. an offense that involved (A) harboring or concealing a terrorist who committed a federal crime of terrorism (such as an offense under 18 U. Amended effective November 1.1 (Kidnapping. In such cases an upward departure would be warranted. or was intended to promote. § 2332b(g)(5). "federal crime of terrorism" has the meaning given that term in 18 U. "Federal Crime of Terrorism" Defined. or to retaliate against government conduct but the offense involved. Historical Note: Effective November 1. or (B) obstructing an investigation of a federal crime of terrorism. 1987. § 2339 or § 2339A). shall be considered to have involved. November 1. increase by 12 levels. amendment 413).C.C. Unlawful Restraint)). one of the offenses specifically enumerated in 18 U.—For purposes of this guideline. and Obstruction Offenses. but the terrorist motive was to intimidate or coerce a civilian population. if the defendant’s criminal history category as determined under Chapter Four (Criminal History and Criminal Livelihood) is less than Category VI.S. 4. §3A1. 1989 (see Appendix C. or to retaliate against government conduct.4. amendments 249 and 250). that federal crime of terrorism.—For purposes of this guideline. the defendant’s criminal history category from Chapter Four (Criminal History and Criminal Livelihood) shall be Category VI. 2009 GUIDELINES MANUAL §3A1. 3. a federal crime of terrorism. 3. an offense other than one of the offenses specifically enumerated in 18 U. or (B) the offense involved.S.S. 1991 (see Appendix C. Terrorism (a) If the offense is a felony that involved. § 2332b(g)(5)(B). – 343 – . there may be cases in which (A) the offense was calculated to influence or affect the conduct of government by intimidation or coercion. but if the resulting offense level is less than level 32. In each such case.C. it shall be increased to Category VI. If the restraint was sufficiently egregious. or was intended to promote. (b) Commentary Application Notes: 1. See §5K2. However. the adjustment provided by this guideline applies only to federal crimes of terrorism. § 2332b(g)(5)(B).

4 GUIDELINES MANUAL November 1. November 1. amendment 539). amendment 565). Historical Note: Effective November 1. November 1. 1997 (see Appendix C.§3A1. 1996 (see Appendix C. amendment 526). amendment 637). 1995 (see Appendix C. 2002 (see Appendix C. 2009 a departure may not exceed the top of the guideline range that would have resulted if the adjustment under this guideline had been applied. – 344 – . Amended effective November 1.

1 or §3B1. or supervisor in any criminal activity other than described in (a) or (b). §3B1.3 (Relevant Conduct).. but who nevertheless exercised management responsibility over the property. The determination of a defendant’s role in the offense is to be made on the basis of all conduct within the scope of §1B1. but need not have been convicted. 1987. increase the offense level as follows: (a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive. an undercover law enforcement officer) is not a participant.ROLE IN THE OFFENSE Introductory Commentary This Part provides adjustments to the offense level based upon the role the defendant played in committing the offense. or supervise another participant. Aggravating Role Based on the defendant’s role in the offense.3 may apply to offenses committed by any number of participants. in the case of a defendant who did not organize. A person who is not criminally responsible for the commission of the offense (e. When an offense is committed by more than one participant. (b) (c) Commentary Application Notes: 1.1 PART B . – 345 – . or supervisor of one or more other participants. 1990 (see Appendix C. Section 3B1. 2. leader. or activities of a criminal organization. amendment 456). increase by 2 levels. Amended effective November 1.. November 1. the defendant must have been the organizer. §3B1. To qualify for an adjustment under this section. manager. If the defendant was an organizer.November 1. leader. increase by 4 levels.g. An upward departure may be warranted. all conduct included under §1B1. amendment 345). lead. If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive. assets. 2009 GUIDELINES MANUAL §3B1. increase by 3 levels. however. i. 1992 (see Appendix C. and not solely on the basis of elements and acts cited in the count of conviction.1. manager. manage.e. A "participant" is a person who is criminally responsible for the commission of the offense.3(a)(1)-(4).2 (or neither) may apply. Historical Note: Effective November 1.

of course.e. Thus. the recruitment of accomplices. the nature of participation in the commission of the offense. 2009 In assessing whether an organization is "otherwise extensive." all persons involved during the course of the entire offense are to be considered. Factors the court should consider include the exercise of decision making authority. In relatively small criminal enterprises that are not otherwise to be considered as extensive in scope or in planning or preparation. (b) In cases falling between (a) and (b). Background: This section provides a range of adjustments to increase the offense level based upon the size of a criminal organization (i. it is also likely that persons who exercise a supervisory or managerial role in the commission of an offense tend to profit more from it and present a greater danger to the public and/or are more likely to recidivate. decrease by 3 levels. and the degree of control and authority exercised over others. This adjustment does not apply to a defendant who merely suggests committing the offense. the distinction between organization and leadership.. In distinguishing a leadership and organizational role from one of mere management or supervision. amendment 414). 1993 (see Appendix C. decrease by 2 levels. Amended effective November 1. the number of participants in the offense) and the degree to which the defendant was responsible for committing the offense. be more than one person who qualifies as a leader or organizer of a criminal association or conspiracy. The Commission’s intent is that this adjustment should increase with both the size of the organization and the degree of the defendant’s responsibility. a fraud that involved only three participants but used the unknowing services of many outsiders could be considered extensive. the nature and scope of the illegal activity. If the defendant was a minor participant in any criminal activity. amendment 500). 4. This adjustment is included primarily because of concerns about relative responsibility. November 1. GUIDELINES MANUAL November 1. 1987. Mitigating Role Based on the defendant’s role in the offense. – 346 – . and that of management or supervision.2.1(c). decrease by 4 levels. the claimed right to a larger share of the fruits of the crime. decrease the offense level as follows: (a) If the defendant was a minimal participant in any criminal activity. titles such as "kingpin" or "boss" are not controlling. However. There can.1 3. the degree of participation in planning or organizing the offense. Historical Note: Effective November 1. §3B1. is of less significance than in larger enterprises that tend to have clearly delineated divisions of responsibility. This is reflected in the inclusiveness of §3B1.§3B1. 1991 (see Appendix C.

the court.—This guideline is not applicable unless more than one participant was involved in the offense. 3.1 (Aggravating Role). As with any other factual issue. Fact-Based Determination. Definition. involves a determination that is heavily dependent upon the facts of the particular case. or an intermediate adjustment. Attempt or Conspiracy)) is convicted of simple possession of cocaine (an offense having a Chapter Two offense level of level 6 under §2D2. "participant" has the meaning given that term in Application Note 1 of §3B1. whose role in that offense was limited to transporting or storing drugs and who is accountable under §1B1.November 1. or Trafficking (Including Possession with Intent to Commit These Offenses). Importing.—For purposes of this guideline.3 (Relevant Conduct) only for the conduct in which the defendant personally was involved and who performs a limited function in concerted criminal activity is not precluded from consideration for an adjustment under this guideline. Attempt or Conspiracy)). Exporting. A defendant who is accountable under §1B1. that such a role adjustment is warranted. a reduction for a mitigating role under this section ordinarily is not warranted because such defendant is not substantially less culpable than a defendant whose only conduct involved the less serious offense. if a defendant whose actual conduct involved a minimal role in the distribution of 25 grams of cocaine (an offense having a Chapter Two offense level of level 14 under §2D1. in weighing the totality of the circumstances.2 Commentary Application Notes: 1.— (A) Substantially Less Culpable than Average Participant. For example. is not required to find.—This section provides a range of adjustments for a defendant who plays a part in committing the offense that makes him substantially less culpable than the average participant.1 (Unlawful Possession. (B) Conviction of Significantly Less Serious Offense. See the Introductory Commentary to this Part (Role in the Offense). 2009 GUIDELINES MANUAL §3B1.3 only for the quantity of drugs the defendant personally transported or stored is not precluded from consideration for an adjustment under this guideline. 2. Applicability of Adjustment. Accordingly.1 (Unlawful Manufacturing. For example.—The determination whether to apply subsection (a) or subsection (b).—If a defendant has received a lower offense level by virtue of being convicted of an offense significantly less serious than warranted by his actual criminal conduct. Requirement of Multiple Participants. based solely on the defendant’s bare assertion. no reduction for a mitigating role is warranted because the defendant is not substantially less culpable than a defendant whose only conduct involved the simple possession of cocaine. an adjustment under this guideline may not apply to a defendant who is the only defendant convicted of an offense unless that offense involved other participants in addition to the defendant and the defendant otherwise qualifies for such an adjustment. (C) – 347 – . a defendant who is convicted of a drug trafficking offense.

2001 (see Appendix C.— Subsection (b) applies to a defendant described in Application Note 3(A) who is less culpable than most other participants. Minor Participant. a bank executive’s fraudulent loan scheme. Under this provision. it may be employed in addition to an adjustment under §3B1. If this adjustment is based upon an abuse of a position of trust. it may not be employed in addition to an adjustment under §3B1.g. 2002 (see Appendix C. Abuse of Position of Trust or Use of Special Skill If the defendant abused a position of public or private trust. It is intended that the downward adjustment for a minimal participant will be used infrequently.e. in a manner that significantly facilitated the commission or concealment of the offense. if this adjustment is based solely on the use of a special skill.—Subsection (a) applies to a defendant described in Application Note 3(A) who plays a minimal role in concerted activity. the court also shall apply the appropriate adjustment under this guideline.1(a)(5). November 1. the defendant’s lack of knowledge or understanding of the scope and structure of the enterprise and of the activities of others is indicative of a role as minimal participant. Commentary Application Notes: 1.3. amendment 635).. – 348 – .§3B1. or used a special skill. This adjustment. GUIDELINES MANUAL November 1.—In a case in which the court applied §2D1. amendment 456). §3B1. 1992 (see Appendix C. by making the detection of the offense or the defendant’s responsibility for the offense more difficult). 6.1 (Aggravating Role). increase by 2 levels..1 (Aggravating Role). Application of Role Adjustment in Certain Drug Cases. This adjustment may not be employed if an abuse of trust or skill is included in the base offense level or specific offense characteristic. It is intended to cover defendants who are plainly among the least culpable of those involved in the conduct of a group. the position of public or private trust must have contributed in some significant way to facilitating the commission or concealment of the offense (e. amendment 640). but whose role could not be described as minimal.—"Public or private trust" refers to a position of public or private trust characterized by professional or managerial discretion (i. November 1. 2009 (see Appendix C. or the criminal sexual abuse of a patient by a physician under the guise of an examination. Persons holding such positions ordinarily are subject to significantly less supervision than employees whose responsibilities are primarily non-discretionary in nature. Historical Note: Effective November 1. Amended effective November 1. For this adjustment to apply.1 and the defendant’s base offense level under that guideline was reduced by operation of the maximum base offense level in §2D1. Definition of "Public or Private Trust".2 4. substantial discretionary judgment that is ordinarily given considerable deference). November 1. 1987. applies in the case of an embezzlement of a client’s funds by an attorney serving as a guardian. amendment 737). 5. This adjustment does not apply in the case of an embezzlement or theft by an ordinary bank teller or hotel clerk because such positions are not characterized by the above-described factors. for example. 2009 Minimal Participant.

Application of Adjustment in Certain Circumstances. or who has any discretionary authority or responsibility in the administration of such plan. and demolition experts. A defendant who exceeds or abuses the authority of his or her position in order to obtain. The following are examples to which this subdivision would apply: (i) an employee of a state motor vehicle department who exceeds or abuses the authority of his or her position by knowingly issuing a driver’s license based on false. training or licensing. or any other provision of this guideline. or issue unlawfully. or (B) perpetrates a fraud by representing falsely to a patient or employer that the defendant is a licensed physician. 5. "Fiduciary of the benefit plan" is defined in 29 U. or misleading information. and (iii) a volunteer at a charitable organization who exceeds or abuses the authority of his or her position by obtaining or misusing identification information from a donor’s file. "Special skill" refers to a skill not possessed by members of the general public and usually requiring substantial education.3 2. 2009 GUIDELINES MANUAL §3B1. (ii) a hospital orderly who exceeds or abuses the authority of his or her position by obtaining or misusing patient identification information from a patient chart. or has any authority or responsibility to do so. If the offense involved theft or embezzlement from a labor union and the defendant was a union officer or occupied a position of trust in the union (as set forth in 29 U. § 1002(21)(A) to mean a person who exercises any discretionary authority or control in respect to the management of such plan or exercises authority or control in respect to management or disposition of its assets.S. an adjustment under this guideline shall apply to the following: (A) An employee of the United States Postal Service who engages in the theft or destruction of undelivered United States mail. an adjustment under this section for an abuse of a position of trust will apply. incomplete. relative to the victim.—Notwithstanding Application Note 1.C. the defendant assumes a position of trust. or use without authority. – 349 – 4. (B) 3.C. chemists. the adjustment applies in the case of a defendant who (A) perpetrates a financial fraud by leading an investor to believe the defendant is a legitimate investment broker. that provides the defendant with the same opportunity to commit a difficult-to-detect crime that the defendant would have had if the position were held legitimately. accountants. This adjustment also applies in a case in which the defendant provides sufficient indicia to the victim that the defendant legitimately holds a position of private or public trust when. doctors. In making the misrepresentation. transfer. an adjustment under this section for abuse of a position of trust will apply. (B) .S. Examples would include pilots.S.C. any means of identification. lawyers. or who renders investment advice for a fee or other direct or indirect compensation with respect to any moneys or other property of such plan. § 1028(d)(7). For example. § 501(a)). The following additional illustrations of an abuse of a position of trust pertain to theft or embezzlement from employee pension or welfare benefit plans or labor unions: (A) If the offense involved theft or embezzlement from an employee pension or welfare benefit plan and the defendant was a fiduciary of the benefit plan.November 1. "Means of identification" has the meaning given that term in 18 U. in fact. the defendant does not.

1996 (see Appendix C. amendment 580). November 1. amendment 726). commanding. amendment 527).4. Use of Body Armor in Drug Trafficking Crimes and Crimes of Violence If— (1) the defendant was convicted of a drug trafficking crime or a crime of violence.4 (untitled). 1987. and (apply the greater)— (A) (B) the offense involved the use of body armor. If the defendant used or attempted to use more than one person less than eighteen years of age. increase by 2 levels. Amended effective November 1. was deleted effective November 1. or apprehension for. November 1. encouraging.5. amendment 303). Using a Minor To Commit a Crime If the defendant used or attempted to use a person less than eighteen years of age to commit the offense or assist in avoiding detection of.3 GUIDELINES MANUAL November 1. effective November 1. 2009 (see Appendix C. Amended effective November 1. amendment 527). amendment 346). 1995 (see Appendix C. recruiting. amended effective November 1. amendment 617). or the defendant used body armor during the commission of the offense. they do not. (2) – 350 – . 3. 1998 (see Appendix C. 1990 (see Appendix C. amendment 540). training. November 1.§3B1. 1987. A former §3B1. amendment 492). 2001 (see Appendix C. 1989 (see Appendix C. 2. Such persons generally are viewed as more culpable. amendment 677). increase by 2 levels. intimidating. Commentary Application Notes: 1. procuring. increase by 4 levels. the offense. 1995 (see Appendix C. 1993 (see Appendix C. an upward departure may be warranted. or soliciting. November 1. §3B1. §3B1. in fact. November 1. 2005 (see Appendix C. or in an attempt to avoid apprehension for the offense. 2009 Background: This adjustment applies to persons who abuse their positions of trust or their special skills to facilitate significantly the commission or concealment of a crime. Historical Note: Effective November 1. "Used or attempted to use" includes directing. counseling. The adjustment also applies to persons who provide sufficient indicia to the victim that they legitimately hold a position of public or private trust when. Historical Note: Effective November 1. in preparation for the offense. Do not apply this adjustment if the Chapter Two offense guideline incorporates this factor.

November 1.—Consistent with §1B1. "Offense" has the meaning given that term in Application Note 1 of the Commentary to §1B1.6 (Possessing. 3.—For purposes of this guideline: "Body armor" means any product sold or offered for sale. Amended effective November 1. in interstate or foreign commerce. 2009 GUIDELINES MANUAL §3B1.6 and Other Counts of Conviction. limits the accountability of the defendant to the defendant’s own conduct and conduct that the defendant aided or abetted. Application of Subdivision (2)(B).C. Purchasing.C. induced. in addition to the count of conviction under 18 U.S. 2003 (see Appendix C. do not apply an adjustment under this guideline. – 351 – . Historical Note: Effective November 1. the defendant (A) is convicted of an offense that is a drug trafficking crime or a crime of violence. "Drug trafficking crime" has the meaning given that term in 18 U. § 924(c)(2). § 931 and receives an enhancement under subsection (b)(1) of §2K2. amendment 670).g. However. the term "defendant". "Used" means put into "use" as defined in this paragraph. L.C. Definitions.3 (Relevant Conduct). See 18 U. 107–273). and (B) used the body armor with respect to that offense. or Owning Body Armor by Violent Felons).S. § 931.S. Interaction with §2K2. regardless of whether the product is to be worn alone or is sold as a complement to another product or garment.S. Background: This guideline implements the directive in the James Guelff and Chris McCurley Body Armor Act of 2002 (section 11009(d) of the 21st Century Department of Justice Appropriations Authorization Act.5 Commentary Application Notes: 1. 2.C. for purposes of subdivision (2)(B). § 16. 2004 (see Appendix C. "Use" means (A) active employment in a manner to protect the person from gunfire. an adjustment under this guideline shall apply with respect to that offense.1 (Application Instructions). Pub. "Crime of violence" has the meaning given that term in 18 U.—If the defendant is convicted only of 18 U. counseled. procured.. or willfully caused. if.C. as personal protective body covering intended to protect against gunfire. "use" does not mean that the body armor was found in the trunk of the car but not used actively as protection).S. "Use" does not mean mere possession (e. commanded. § 921(a)(35). amendment 659). or (B) use as a means of bartering.

or attempted to obstruct or impede.OBSTRUCTION AND RELATED ADJUSTMENTS Historical Note: Effective November 1. A defendant’s denial of guilt (other than a denial of guilt under oath that constitutes perjury). Although the conduct to which this adjustment applies 3. Application Note 4 sets forth examples of the types of conduct to which this adjustment is intended to apply. – 352 – . and (B) related to (i) the defendant’s offense of conviction and any relevant conduct. and seriousness. Amended effective November 1.—This provision is not intended to punish a defendant for the exercise of a constitutional right. Obstructive conduct that occurred prior to the start of the investigation of the instant offense of conviction may be covered by this guideline if the conduct was purposefully calculated. or faulty memory and. §3C1.—This adjustment applies if the defendant’s obstructive conduct (A) occurred with respect to the investigation. or (ii) an otherwise closely related case. In applying this provision in respect to alleged false testimony or statements by the defendant. the court should be cognizant that inaccurate testimony or statements sometimes may result from confusion. increase the offense level by 2 levels.1 GUIDELINES MANUAL November 1.§3C1. prosecution. thus. prosecution. mistake. such as that of a co-defendant. or sentencing of the defendant’s instant offense of conviction.1. or (ii) a closely related offense. the administration of justice with respect to the investigation.—Obstructive conduct can vary widely in nature. refusal to admit guilt or provide information to a probation officer. but that ordinarily can appropriately be sanctioned by the determination of the particular sentence within the otherwise applicable guideline range. not all inaccurate testimony or statements necessarily reflect a willful attempt to obstruct justice. Application Note 5 sets forth examples of less serious forms of conduct to which this enhancement is not intended to apply. Limitations on Applicability of Adjustment. 2. degree of planning. 1987. and likely. Obstructing or Impeding the Administration of Justice If (A) the defendant willfully obstructed or impeded. Commentary Application Notes: 1. or refusal to enter a plea of guilty is not a basis for application of this provision. 2009 PART C . and (B) the obstructive conduct related to (i) the defendant’s offense of conviction and any relevant conduct. to thwart the investigation or prosecution of the offense of conviction. In General. amendment 684). or sentencing of the instant offense of conviction. 2006 (see Appendix C. Covered Conduct Generally.

directly or indirectly. or willfully failing to appear.g. escaping or attempting to escape from custody before trial or sentencing.. or juror. failing to comply with a restraining order or injunction issued pursuant to 21 U. however.—The following is a non-exhaustive list of examples of the types of conduct to which this adjustment applies: (a) threatening. standing alone. suborning. attempting to swallow or throw away a controlled substance). or otherwise unlawfully influencing a co-defendant. 4. other conduct prohibited by obstruction of justice provisions under Title 18.S. or attempting to do so. § 853(e) or with an order to repatriate property issued pursuant to 21 U. if such conduct occurred contemporaneously with arrest (e.C.g. destroying or concealing or directing or procuring another person to destroy or conceal evidence that is material to an official investigation or judicial proceeding (e.. shredding a document or destroying ledgers upon learning that an official investigation has commenced or is about to commence).November 1.. committing. threatening the victim of the offense in an attempt to prevent the victim from reporting the conduct constituting the offense of conviction.C. Examples of Covered Conduct. providing materially false information to a probation officer in respect to a presentence or other investigation for the court. altered. or attempting to do so. as ordered.1 is not subject to precise definition. providing a materially false statement to a law enforcement officer that significantly obstructed or impeded the official investigation or prosecution of the instant offense. it shall not. be sufficient to warrant an adjustment for obstruction unless it resulted in a material hindrance to the official investigation or prosecution of the instant offense or the sentencing of the offender.C. (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) – 353 – . United States Code (e. including during the course of a civil proceeding if such perjury pertains to conduct that forms the basis of the offense of conviction. 2009 GUIDELINES MANUAL §3C1. 1511). §§ 1510. producing or attempting to produce a false.g. providing materially false information to a judge or magistrate. or counterfeit document or record during an official investigation or judicial proceeding.S. 18 U. witness. § 853(p). comparison of the examples set forth in Application Notes 4 and 5 should assist the court in determining whether application of this adjustment is warranted in a particular case.S. intimidating. or attempting to suborn perjury. for a judicial proceeding.

.e. if the defendant threatened a witness during the course of the prosecution for the obstruction offense).g. statement. however. (b) (c) (d) (e) 6. §2J1..C. avoiding or fleeing from arrest (see. if believed. not under oath. §3C1. prosecution.3 (Perjury or Subornation of Perjury. §2J1.1 (Misprision of Felony). means evidence. prosecution. fact.1 (Acceptance of Responsibility)).S.—If the defendant is convicted both of an obstruction offense (e..9 (Payment to Witness). Bribery of Witness). 2009 This adjustment also applies to any other obstructive conduct in respect to the official investigation. unless Application Note 4(g) above applies.g. providing incomplete or misleading information. – 354 – . if the defendant is convicted of a separate count for such conduct. or sentencing of the instant offense where there is a separate count of conviction for such conduct.1 GUIDELINES MANUAL November 1. Grouping Under §3D1. See Application Note 8.—If the defendant is convicted of an offense covered by §2J1.—"Material" evidence.. "Material" Evidence Defined. lying to a probation or pretrial services officer about defendant’s drug use while on pretrial release. §2X3.2 (Obstruction of Justice).S. 18 U. fact.C. would tend to influence or affect the issue under determination.g. §2J1. § 1621 (Perjury generally)) and 7. §3E1. However.1 (Contempt).—Some types of conduct ordinarily do not warrant application of this adjustment but may warrant a greater sentence within the otherwise applicable guideline range or affect the determination of whether other guideline adjustments apply (e. statement. 18 U. this adjustment is not to be applied to the offense level for that offense except if a significant further obstruction occurred during the investigation. not amounting to a material falsehood.1 (Accessory After the Fact).6 (Failure to Appear by Defendant). 8.§3C1. or §2X4. to law enforcement officers. in respect to a presentence investigation. Inapplicability of Adjustment in Certain Circumstances. §2J1. or information. except where such conduct actually resulted in a significant hindrance to the investigation or prosecution of the instant offense. the offense with respect to which the obstructive conduct occurred).5 (Failure to Appear by Material Witness). The following is a non-exhaustive list of examples of the types of conduct to which this application note applies: (a) providing a false name or identification document at arrest. this adjustment will apply and increase the offense level for the underlying offense (i.2 (Reckless Endangerment During Flight)). although such conduct may be a factor in determining whether to reduce the defendant’s sentence under §3E1. making false statements. or information that. or sentencing of the obstruction offense itself (e. 5. Examples of Conduct Ordinarily Not Covered. §2J1. below.1 (Acceptance of Responsibility).2(c). § 3146 (Penalty for failure to appear). as used in this section.

amendments 251 and 252).4 (Involuntary Manslaughter). counseled.2 (Groups of Closely Related Counts). 2009 GUIDELINES MANUAL §3C1. November 1. Therefore. – 355 – . 1993 (see Appendix C. or willfully caused. §3C1. "Reckless" is defined in the Commentary to §2A1. 1987. results in an equivalent or greater increase in offense level solely on the basis of the same conduct. "reckless" means that the conduct was at least reckless and includes any higher level of culpability. or willfully caused. 1992 (see Appendix C. Amended effective November 1. "During flight" is to be construed broadly and includes preparation for flight. 1991 (see Appendix C. 2004 (see Appendix C. 3. or the offense level for the obstruction offense. amendment 496). 1989 (see Appendix C. Under this section. 4. commanded. November 1. where a higher degree of culpability was involved. whichever is greater. Commentary Application Notes: 1. 1990 (see Appendix C. an upward departure above the 2-level increase provided in this section may be warranted. November 1. except a participant in the offense who willingly participated in the flight. amendment 693).November 1. induced. November 1.2. November 1. commanded. amendment 637). Accountability for §1B1. 2. However. amendment 415). November 1. amendments 579. increase by 2 levels. "Another person" includes any person. or another adjustment in Chapter Three. procured. Reckless Endangerment During Flight If the defendant recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer. 9. 5. November 1. and 582). 1998 (see Appendix C. Do not apply this enhancement where the offense guideline in Chapter Two. counseled. the defendant is accountable for his own conduct and for conduct that he aided or abetted. November 1. amendment 566).2 an underlying offense (the offense with respect to which the obstructive conduct occurred). amendment 674). this adjustment also is applicable where the conduct occurs in the course of resisting arrest. induced.—Under this section. amendment 457). the count for the obstruction offense will be grouped with the count for the underlying offense under subsection (c) of §3D1. 2002 (see Appendix C. Historical Note: Effective November 1. November 1. 1997 (see Appendix C. 2006 (see Appendix C. The offense level for that group of closely related counts will be the offense level for the underlying offense increased by the 2-level adjustment specified by this section.3(a)(1)(A) Conduct. 581. procured. the defendant is accountable for his own conduct and for conduct that he aided or abetted. amendment 347). For the purposes of this guideline.

should divide the sentence on the judgment form between the sentence attributable to the underlying offense and the sentence attributable to the enhancement.S. This guideline enables the court to determine and implement a combined "total punishment" consistent with the overall structure of the guidelines.C.§3C1. after appropriate sentencing notice.e. amendment 347). Commission of Offense While on Release If a statutory sentencing enhancement under 18 U. 2009 (see Appendix C. November 1. Amended effective November 1.C. a sentence of imprisonment must be imposed in addition to the sentence for the underlying offense. Similarly. §3C1.C. the court. For example.C. amendment 734). Historical Note: Effective November 1. 1992 (see Appendix C. § 3147. increase the offense level by 3 levels. § 3147 would satisfy this requirement. amendment 416). Under 18 U.S. if the applicable adjusted guideline range is 30-37 months and the court determines a "total punishment" of 36 months is appropriate.1 (Application Instructions)). if the applicable adjusted guideline range is 30-37 months and the court determines a "total punishment" of 30 months is appropriate.S. while at the same time complying with the statutory requirement. Historical Note: Effective November 1.S. Part K (Departures). See Chapter Five. and the sentence of imprisonment imposed under 18 U. the adjustment provided by the enhancement in this section. The court will have to ensure that the "total punishment" (i. 2009 If death or bodily injury results or the conduct posed a substantial risk of death or bodily injury to more than one person. Background: An enhancement under 18 U. GUIDELINES MANUAL November 1. Amended effective November 1. 2006 (see Appendix C. 1991 (see Appendix C. Therefore. § 3147 must run consecutively to any other sentence of imprisonment. in order to comply with the statute. including. 1990 (see Appendix C. § 3147 applies.2 6.C.C. a sentence of 24 months for the underlying offense plus 6 months under 18 U. amendment 684).S.S. when a defendant is sentenced for an offense committed while released in connection with another federal offense. – 356 – . an upward departure may be warranted.S.. Commentary Application Note: 1. § 3147 applies.C. as in any other case in which a Chapter Three adjustment applies (see §1B1. § 3147 would satisfy this requirement. a sentence of 30 months for the underlying offense plus 6 months under 18 U. amendment 457).3. § 3147) is in accord with the guideline range for the offense committed while on release. the sentence for the offense committed while on release plus the statutory sentencing enhancement under 18 U.

§ 3559(g)(1) applies.C. increase by 2 levels. Amended effective November 1. – 357 – .4. False Registration of Domain Name If a statutory enhancement under 18 U. amendment 724).November 1.4 §3C1. 108–482. 2008 (see Appendix C. L. Historical Note: Effective November 1. amendment 689). Commentary Background: This adjustment implements the directive to the Commission in section 204(b) of Pub.S. 2009 GUIDELINES MANUAL §3C1. 2006 (see Appendix C.

embezzling money from a bank and falsifying the related records. different rules are required for dealing with multiple-count convictions involving these two different general classes of offenses. are oriented more toward single episodes of criminal behavior. Some offenses. e. The amount of the additional punishment declines as the number of additional offenses increases.. such as an assault causing bodily injury to a teller during a bank robbery. Other guidelines. These rules apply to multiple counts of conviction (A) contained in the same indictment or information. Convictions on multiple counts do not result in a sentence enhancement unless they represent additional conduct that is not otherwise accounted for by the guidelines. leaving the sentence enhancement to result from application of a specific offense characteristic. The other counts determine how much to increase the offense level. fraud and drug offenses. may be "composite" in that they involve a pattern of conduct or scheme involving multiple underlying offenses. In essence. 2009 PART D . so that it would be more appropriate to treat them as a single offense for purposes of sentencing. For example. More complex cases involving different types of offenses may require application of one rule to some of the counts and another rule to other counts. The most serious offense is used as a starting point. These rules have been designed primarily with the more commonly prosecuted federal offenses in mind. The rules in this Part are to be used to determine the offense level for such composite offenses from the offense level for the underlying offenses. 3 Pt. D GUIDELINES MANUAL November 1. Other offenses.Ch. although legally distinct offenses. the rules in this Part can be summarized as follows: (1) If the offense guidelines in Chapter Two base the offense level primarily on the amount of money or quantity of substance – 358 – . such as those for theft. Some offenses that may be charged in multiple-count indictments are so closely intertwined with other offenses that conviction for them ordinarily would not warrant increasing the guideline range. In order to limit the significance of the formal charging decision and to prevent multiple punishment for substantially identical offense conduct. such as those for assault and robbery. counts that are grouped together are treated as constituting a single offense for purposes of the guidelines. "combined" offense level that results from applying these rules is used. The rules in this Part seek to provide incremental punishment for significant additional criminal conduct. The single. Accordingly. to determine the sentence. or (B) contained in different indictments or informations for which sentences are to be imposed at the same time or in a consolidated proceeding.MULTIPLE COUNTS Introductory Commentary This Part provides rules for determining a single offense level that encompasses all the counts of which the defendant is convicted.g. contain provisions that deal with repetitive or ongoing behavior. racketeering and conspiracy. represent essentially the same type of wrongful conduct with the same ultimate harm. after adjustment pursuant to the guidelines in subsequent parts. Some offense guidelines. Essentially. this Part provides rules for grouping offenses together. are so closely related to the more serious offense that it would be appropriate to treat them as part of the more serious offense.

. amendment 121).2. Any count of conviction under 18 U.S.5 the following: (1) Any count for which the statute (A) specifies a term of imprisonment to be imposed.2-3D1. fraud. firearms dealing). 2007 (see Appendix C. 2009 GUIDELINES MANUAL §3D1. See Application Note 2(B) of the Commentary to §5G1. counts can be (A) contained in the same indictment or information.g.S.g. or otherwise contain provisions dealing with repetitive or ongoing misconduct (e.3. Sentences for such counts are governed by the provisions of §5G1. 1989 (see Appendix C.1. drug trafficking.November 1. Amended effective November 1. (3) As to other offenses (e. add the numerical quantities and apply the pertinent offense guideline. start with the offense level for the most serious count and use the number and severity of additional counts to determine the amount by which to increase that offense level. § 1028A. § 1028A should be imposed. 1987. – 359 – . Historical Note: Effective November 1. group them together for purposes of the multiple-count rules.C.2(a). (2) (3) (b) Exclude from the application of §§3D1. November 1. and use only the offense level for the most serious offense in that group..2 (Sentencing on Multiple Counts of Conviction) for guidance on how sentences for multiple counts of conviction under 18 U.C. independent instances of assault or robbery). many environmental offenses). theft. Procedure for Determining Offense Level on Multiple Counts (a) When a defendant has been convicted of more than one count. In General.g. (2) Commentary Application Notes: 1.1 involved (e. §3D1. Determine the offense level applicable to each Group by applying the rules specified in §3D1. Determine the combined offense level applicable to all Groups taken together by applying the rules specified in §3D1. the court shall: (1) Group the counts resulting in conviction into distinct Groups of Closely Related Counts ("Groups") by applying the rules specified in §3D1.4. amendment 707).. (2) When offenses are closely interrelated. or (B) contained in different indictments or informations for which sentences are to be imposed at the same time or in a consolidated proceeding. and (B) requires that such term of imprisonment be imposed to run consecutively to any other term of imprisonment.—For purposes of sentencing multiple counts of conviction. including any specific offense characteristics for the conduct taken as a whole.

g. and one count of use of a firearm in the commission of a crime of violence (18 U. and (B) requires that such term of imprisonment be imposed to run consecutively to any other term of imprisonment. See §5G1. 18 U.C.S. amendment 579). e. Accordingly. the offense level for the bank robbery count under §2B3. After any adjustments from Chapter 3. § 922(q) (possession or discharge of a firearm in a school zone)). and. 18 U. a count covered by subsection (b)(1) may affect the offense level determination for other counts. Chapter Five (Determining the Sentence) discusses how to determine the sentence from the (combined) offense level. 1987.§3D1. the mandatory minimum five-year sentence on the weapon-use count runs consecutively to the guideline sentence imposed on the bank robbery count.. 2007 (see Appendix C. 1990 (see Appendix C.2(a). §5G1.1 (Robbery) is computed without application of the enhancement for weapon possession or use as otherwise required by subsection (b)(2) of that guideline. the multiple count rules set out under this Part do apply to a count of conviction under this type of statute. Counts involve substantially the same harm within the meaning of this rule: (a) (b) When counts involve the same victim and the same act or transaction. amendment 598). 2005 (see Appendix C. 2009 Subsection (b)(1) applies if a statute (A) specifies a term of imprisonment to be imposed.C. § 924(c). a defendant is convicted of one count of bank robbery (18 U. The multiple count rules set out under this Part do not apply to a count of conviction covered by subsection (b). Part B (Career Offenders and Criminal Livelihood) are made. However. Part E (Acceptance of Responsibility) and Chapter 4. based on the conduct involved. 1998 (see Appendix C.C.e. The two counts are not grouped together pursuant to this guideline.S. amendment 707) . e. When counts involve the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan. November 1. subsection (b)(1) does not apply when imposing a sentence under a statute that requires the imposition of a consecutive term of imprisonment only if a term of imprisonment is imposed (i. Unless specifically instructed. Historical Note: Effective November 1.S.S..C. Background: This section outlines the procedure to be used for determining the combined offense level.2. § 3146 (Penalty for failure to appear). § 1791(c) (penalty for providing or possessing a controlled substance in prison). – 360 – . §3D1.1 2.g. References in Chapter Five (Determining the Sentence) to the "offense level" should be treated as referring to the combined offense level after all subsequent adjustments have been made.S.S.S. this combined offense level is used to determine the guideline sentence range.C. November 1.2 deals specifically with determining the sentence of imprisonment when convictions on multiple counts are involved. § 924(a)(4) (regarding penalty for 18 U. amendment 348). See. 18 U.C. Groups of Closely Related Counts All counts involving substantially the same harm shall be grouped together into a single Group. § 924(c) (requiring mandatory minimum terms of imprisonment. to avoid unwarranted double counting. § 924(c)). See. November 1.. Pursuant to 18 U. 18 U. amendments 677 and 680). 2000 (see Appendix C. For example. Amended effective November 1.C. § 2113).C. GUIDELINES MANUAL November 1. to run consecutively).S. November 1. the statute does not otherwise require a term of imprisonment to be imposed).

1.1. 2T1.5.1.1.1.5).1.5.4. §§2P1.1. or some other measure of aggregate harm. 2E2. 2E1. 2M3. the quantity of a substance involved.1.1. 2H4. 2D1. 2H2. §2K2. 2B1.1.1.2.3. Exclusion of an offense from grouping under this subsection does not necessarily preclude grouping under another subsection.9.6. 2C1.3.5. For multiple counts of offenses that are not listed.1.1.1. 2S1. 2B6.2. §2X6. 2L2.1. 2B3.1.3.3. the guideline applicable to another of the counts. Specifically excluded from the operation of this subsection are: all offenses in Chapter Two. 2P1. §§2C1.1. 2B4. or other adjustment to.2. grouping under this subsection may or may not be appropriate. 2M3.5.3. §§2S1. §§2B1. 2B3.8.7. §2C1. 2B5. 2T1.2. or if the offense behavior is ongoing or continuous in nature and the offense guideline is written to cover such behavior.5.3. §2R1. §§2M2. 2T1.2. §§2L1. When the offense level is determined largely on the basis of the total amount of harm or loss. 2B3. 2T2. §§2E4. 2D1. 2D2.3. Offenses covered by the following guidelines are to be grouped under this subsection: §2A3. 2M3. §2Q2.1. 2C1.11. 2B1.13. 2B5.4.3. §§2B2.1. §§2H1.1.9. 2M3. 2B2.1.1. §§2G1.2 (c) When one of the counts embodies conduct that is treated as a specific offense characteristic in.5. 2T3. §§2L2. 2M3. 2D1. 2G3. §2N3. 2G2.1.November 1.1.2. 2T1. 2009 GUIDELINES MANUAL §3D1. a case-by-case determination must be made based upon the facts of the case and the applicable guidelines (including specific offense characteristics and other adjustments) used to determine the offense level.1. §§2D2. §§2E1.2.1. 2M3. §§2G2.2. (d) – 361 – .1.4.3.1. 2M2. 2D2. 2P1.1. Part A (except §2A3.4. §§2D1.1.1.1. 2E5. 2L2. 2D1. §§2T1.

the counts are grouped together because the societal interests harmed (the interests protected by laws governing immigration) are closely related. In such cases.§3D1. The counts are to be grouped together. involves unlawfully entering the United States and the other involves possession of fraudulent evidence of citizenship. But: (6) The defendant is convicted of two counts of assault on a federal officer for shooting at the officer on two separate days.. counts are to be grouped together when they represent essentially a single injury or are part of a single criminal episode or transaction involving the same victim.1(b)(1). i. (4) The defendant is convicted of two counts of assault on a federal officer for shooting at the same officer twice while attempting to prevent apprehension as part of a single criminal episode. the counts will be grouped together under subsection (a). drug or immigration offenses. Ambiguities should be resolved in accordance with the purpose of this section as stated in the lead paragraph. to identify and group "counts involving substantially the same harm. for example.. comment. there will be one person who is directly and most seriously affected by the offense and is therefore identifiable as the victim. id. 4. The three counts are to be grouped together. The counts are to be grouped together. where society at large is the victim). 2009 Commentary Application Notes: 1. where one count involves the sale of controlled substances and the other involves an immigration law violation. Subsection (b) provides that counts that are part of a single course of conduct with a single criminal objective and represent essentially one composite harm to the same victim are to be – 362 – 2. Counts are to be grouped together into a single Group if any one or more of the subsections provide for such grouping. Examples: (1) The defendant is convicted of forging and uttering the same check. Subsections (a)-(d) set forth circumstances in which counts are to be grouped together into a single Group. For offenses in which there are no identifiable victims (e. . (n. The counts are to be grouped together. and (B) requires that such term of imprisonment be imposed to run consecutively to any other term of imprisonment are excepted from application of the multiple count rules. The counts are not to be grouped together. or when one count charges an offense based on a general prohibition and the other charges violation of a specific prohibition encompassed in the general prohibition.2 GUIDELINES MANUAL November 1. the counts are grouped together when the societal interests that are harmed are closely related. all counts arising out of a single incident." Under subsection (a). See §3D1. In contrast. the "victim" for purposes of subsections (a) and (b) is the societal interest that is harmed.e.. Where one count. the counts are not grouped together because different societal interests are harmed. Counts for which the statute (A) specifies a term of imprisonment to be imposed. When one count charges an attempt to commit an offense and the other charges the commission of that offense.1). (2) The defendant is convicted of kidnapping and assaulting the victim during the course of the kidnapping. The term "victim" is not intended to include indirect or secondary victims. (3) The defendant is convicted of bid rigging (an antitrust offense) and of mail fraud for signing and mailing a false statement that the bid was competitive. 3. The counts are to be grouped together. Generally.g. (5) The defendant is convicted of three counts of unlawfully bringing aliens into the United States.

even if they constitute legally distinct offenses occurring at different times. a count such as obstruction of justice. This provision prevents "double counting" of offense behavior. In addition. a finding is made that there are two other sales. even if the mailings and telephone call occurred on different days.2 grouped together. It is not. for example. the intent of this rule that (assuming they could be joined together) a bank robbery on one occasion and an assault resulting in bodily injury on another occasion be grouped together. The two counts will then be grouped together under either this subsection or subsection (d) to avoid double counting. this provision will overlap subsection (a). But: (5) The defendant is convicted of two counts of rape for raping the same person on different days.November 1. 2009 GUIDELINES MANUAL §3D1. not one composite harm). the assault with serious bodily injury would be – 363 – . (4) The defendant is convicted of two counts of distributing a controlled substance. (2) The defendant is convicted of two counts of mail fraud and one count of wire fraud. bodily injury or obstruction of justice. if in a robbery of a credit union on a military base the defendant is also convicted of assaulting two employees. The counts are not to be grouped together.3(a)(2). robbery of the same victim on different occasions involves multiple. each of which could be treated as an aggravating factor to another more serious count. Examples: (1) The defendant is convicted of one count of conspiracy to commit extortion and one count of extortion for the offense he conspired to commit. In such cases. Subsection (c) provides that when conduct that represents a separate count.g. also part of the common scheme or plan. When one count charges a conspiracy or solicitation and the other charges a substantive offense that was the sole object of the conspiracy or solicitation. This provision does not authorize the grouping of offenses that cannot be considered to represent essentially one composite harm (e. The counts are to be grouped together. only the count representing the most serious of those factors is to be grouped with the other count. (3) The defendant is convicted of one count of auto theft and one count of altering the vehicle identification number of the car he stole. each count involving a separate sale of 10 grams of cocaine that is part of a common scheme or plan. Sometimes there may be several counts. separate instances of fear and risk of harm. The counts are to be grouped together. the counts will be grouped together under subsection (b). but the guideline for the more serious count provides an adjustment for only one occurrence of that factor. at least with respect to specific offense characteristics.g. e. Of course. this rule applies only if the offenses are closely related. is covered by subsection (c) even though it is not covered by subsection (a). However. each in furtherance of a single fraudulent scheme. one of whom is injured seriously. The total amount of all four sales (40 grams of cocaine) will be used to determine the offense level for each count under §1B1. 5. which represents a Chapter Three adjustment and involves a different harm or societal interest than the underlying offense. For example. the count represented by that conduct is to be grouped with the count to which it constitutes an aggravating factor.. The counts are to be grouped together. is also a specific offense characteristic in or other adjustment to another count. Frequently. each involving 10 grams of cocaine. The bodily injury (the harm from the assault) would not be a specific offense characteristic to the robbery and would represent a different harm. use of a firearm in a bank robbery and unlawful possession of that firearm are sufficiently related to warrant grouping of counts under this subsection. On the other hand..

each from a different victim. while the remaining assault conviction would be treated separately. however. that certain guidelines are specifically excluded from the operation of subsection (d). attempt. Examples: (1) The defendant is convicted of five counts of embezzling money from a bank. The five counts are to be grouped together. Note. firearms offenses. All five counts are to be grouped together. attempt. (3) The defendant is convicted of five counts of mail fraud and ten counts of wire fraud. Subsection (d) likely will be used with the greatest frequency. 6. (7) The defendant is convicted of three counts of discharging toxic substances from a single facility. or other adjustment" within the meaning of subsection (c). however.. Nonetheless. 2009 grouped with the robbery count. The counts are to be grouped together. (2) The defendant is convicted of two counts of theft of social security checks and three counts of theft from the mail. A cross reference to another offense guideline does not constitute "a specific offense characteristic . (5) The defendant is convicted of one count of selling heroin. The counts are to be grouped together.1 provides rules for combining (adding) quantities of different drugs to determine a single combined offense level. the counts would be grouped together. The list of instances in which this subsection should be applied is not exhaustive.3(b). that the uttering count is first grouped with the first forgery count under subsection (a) of this guideline.2 GUIDELINES MANUAL November 1. however.. the two counts would not be grouped together by virtue of the cross reference. so that the monetary amount of that check counts only once when the rule – 364 – . If. the guideline for bribery of a public official contains a cross reference to the guideline for a conspiracy to commit the offense that the bribe was to facilitate. see §3D1. burglary. Under the latter circumstances. A conspiracy. (8) The defendant is convicted on two counts of check forgery and one count of uttering the first of the forged checks. extortion and the like). and other crimes where the guidelines are based primarily on quantity or contemplate continuing behavior are to be grouped together. the bribe was given for the purpose of hampering a criminal investigation into the offense. All three counts are to be grouped together. or solicitation is covered under subsection (d). The Commentary to §2D1. All fifteen counts are to be grouped together. each involves a monetary objective. if the defendant were convicted of one count of securities fraud and one count of bribing a public official to facilitate the fraud.§3D1. (6) The defendant is convicted of three counts of tax evasion. it would constitute obstruction and under §3C1.1 would result in a 2-level enhancement to the offense level for the fraud. the offense guideline that results in the highest offense level is used. It provides that most property crimes (except robbery. one count of selling PCP. In such cases. For example. The "same general type" of offense is to be construed broadly. Note. Counts involving offenses to which different offense guidelines apply are grouped together under subsection (d) if the offenses are of the same general type and otherwise meet the criteria for grouping under this subsection. or solicitation to commit an offense is covered under subsection (d) if the offense that is the object of the conspiracy. All three counts are to be grouped together. and one count of selling cocaine. Although the counts arise from various schemes. The counts are to be grouped together. drug offenses. (4) The defendant is convicted of three counts of unlicensed dealing in firearms.

all counts may form a single Group. Treat this as if the defendant was convicted of (1) committing offense A.2(d) and accompanying commentary. the first step in determining the combined offense level in a case involving multiple counts is to identify those counts that are sufficiently related to be placed in the same Group of Closely Related Counts ("Group"). Counts involving different victims (or societal harms in the case of "victimless" crimes) are grouped together only as provided in subsection (c) or (d). A single case may result in application of several of the rules in this section. conversely. For example. (3) conspiracy to commit offense B. a defendant may stab three prison guards in a single escape attempt. treat the conspiracy count as if it were several counts. The counts are not to be grouped together. See §1B1. This section specifies four situations in which counts are to be grouped together. Note also that a Group may consist of a single count. Although it appears last for conceptual reasons. nor are the amounts of money involved to be added. according to the rules in this section. subsection (d) probably will be used most frequently. In such cases. In – 365 – . for example. A defendant may be convicted of conspiring to commit several substantive offenses and also of committing one or more of the substantive offenses. the decision as to whether to group them together may not always be clear cut. Example: The defendant is convicted of two counts: conspiring to commit offenses A. Cases involving injury to distinct victims are sufficiently comparable. whether or not the injuries are inflicted in distinct transactions. Even if counts involve a single victim. Some would argue that all counts arising out of a single transaction or occurrence should be grouped together even when there are distinct victims. each charging conspiracy to commit one of the substantive offenses. how contemporaneous must two assaults on the same victim be in order to warrant grouping together as constituting a single transaction or occurrence? Existing case law may provide some guidance as to what constitutes distinct offenses. and (4) conspiracy to commit offense C. and C. Count (1) and count (2) are grouped together under §3D1. A primary consideration in this section is whether the offenses involve different victims.2(d). but such decisions often turn on the technical language of the statute and cannot be controlling. 2009 GUIDELINES MANUAL §3D1. so that each such count should be treated separately rather than grouped together. Then apply the ordinary grouping rules to determine the combined offense level based upon the substantive counts of which the defendant is convicted and the various acts cited by the conspiracy count that would constitute behavior of a substantive nature.2(a) followed by an application of §3D1.November 1. But: (9) The defendant is convicted of three counts of bank robbery. For example. including the various acts cited by the conspiracy count that would constitute behavior of a substantive nature. B. Although such a proposal was considered. it was rejected because it probably would require departure in many cases in order to capture adequately the criminal behavior. Background: Ordinarily.3(b) is applied. (2) conspiracy to commit offense A. and committing offense A.2(b). Group the remaining counts. 8. 7. Thus. example (8) in the discussion of subsection (d) involves an application of §3D1.2 in §3D1.

e. amendments 309. 1989 (see Appendix C. the offense level applicable to a Group is the offense level. The "offense level" for a count refers to the offense level from Chapter Two after all adjustments from Parts A. amendment 638). at least when substantial property losses are involved. 1993 (see Appendix C. the court should look to the underlying policy of this Part as stated in the Introductory Commentary. Parts A. 2001 (see Appendix C. Ordinarily. November 1. B. B. November 1. 1990 (see Appendix C. amendment 45). November 1. and 303).2 GUIDELINES MANUAL November 1.2(d). November 1. 617. November 1. Note that guidelines for similar property offenses have been coordinated to produce identical offense levels. 1992 (see Appendix C. If the counts in the Group are covered by different guidelines. amendment 458). for the most serious of the counts comprising the Group. amendment 579). amendments 615. amendment 534).. However. Offense Level Applicable to Each Group of Closely Related Counts Determine the offense level applicable to each of the Groups as follows: (a) In the case of counts grouped together pursuant to §3D1. 2009 interpreting this Part and resolving ambiguities. 2004 (see Appendix C. November 1. and C of Chapter Three. Commentary (b) Application Notes: 1. §3D1. 2003 (see Appendix C. B and C of Chapter Three. when small sums are involved the differing specific offense – 366 – 2. and C of Chapter Three. the offense level applicable to a Group is the offense level corresponding to the aggregated quantity. 348. November 1. and 349). November 1. amendment 496). amendment 664). determined in accordance with Chapter Two and Parts A. it is necessary to determine the offense level for each of the counts in a Group in order to ensure that the highest is correctly identified. November 1.§3D1. as with a count for an attempt or conspiracy to commit the completed offense. Amended effective June 15. November 1. B. When counts are grouped pursuant to §3D1. November 1. i. 1995 (see Appendix C. the highest offense level of the counts in the group is used. it will be clear that one count in the Group cannot have a higher offense level than another. amendments 679 and 680). November 1. determined in accordance with Chapter Two and Parts A.2(d). use the guideline that produces the highest offense level. amendment 656). 2005 (see Appendix C. Historical Note: Effective November 1. November 1. 1987. apply the offense guideline that produces the highest offense level. 1991 (see Appendix C. When counts are grouped pursuant to §3D1. amendment 648). and C apply based upon the combined offense behavior taken as a whole. 1998 (see Appendix C.2(a)-(c). 2002 (see Appendix C. January 25. When the counts involve offenses of the same general type to which different guidelines apply. 1988 (see Appendix C. amendment 538). amendment 701). 2003 (see Appendix C. In the case of counts grouped together pursuant to §3D1. amendments 121. the highest offense level of the counts in the Group. Sometimes. amendment 417). 1996 (see Appendix C. 2007 (see Appendix C. 3. and 634).2(a)-(c).3. . 253-256. Determine whether the specific offense characteristics or adjustments from Chapter Three. November 1. The formal determination of the offense level for such a count may be unnecessary. the offense guideline applicable to the aggregate behavior is used.

Count one additional Unit for each Group that is equally serious or from 1 to 4 levels less serious.1) includes the most common aggravating factors. amendment 617). For example. The aggravated assault will increase the guideline range for the rape.4. Summary examples of the application of these rules are provided at the end of the Commentary to this Part. 1989 (see Appendix C.November 1. However. all against the same victim on a single occasion. This is because the offense guideline for rape (§2A3. The robbery. and robbery. Disregard any Group that is 9 or more levels less serious than the Group with the highest offense level. 2001 (see Appendix C. Amended effective November 1. if the defendant commits forcible criminal sexual abuse (rape). an exceptionally large property loss in the course of the rape would provide grounds for an upward departure.4 characteristics that require increasing the offense level to a certain minimum may affect the outcome. Such Groups will not increase the applicable offense level – 367 – (b) (c) . that data showed to be significant in actual practice. Historical Note: Effective November 1. Sometimes the rule specified in this section may not result in incremental punishment for additional criminal acts because of the grouping rules. all of the counts are grouped together under §3D1. November 1. amendment 674).5 (Property Damage or Loss). aggravated assault. however. 1987. November 1. §3D1.3 3 1/2 .2. 4. Background: This section provides rules for determining the offense level associated with each Group of Closely Related Counts.5 More than 5 Increase in Offense Level none add 1 level add 2 levels add 3 levels add 4 levels add 5 levels. The additional factor of property loss ordinarily can be taken into account adequately within the guideline range for rape. See §5K2. will not. 2004 (see Appendix C. Determining the Combined Offense Level The combined offense level is determined by taking the offense level applicable to the Group with the highest offense level and increasing that offense level by the amount indicated in the following table: Number of Units 1 1 1/2 2 2 1/2 . In determining the number of Units for purposes of this section: (a) Count as one Unit the Group with the highest offense level. amendments 257 and 303). Count as one-half Unit any Group that is 5 to 8 levels less serious than the Group with the highest offense level. including injury. 2009 GUIDELINES MANUAL §3D1. which is fairly wide.

4 GUIDELINES MANUAL November 1. Conversely. Historical Note: Effective November 1.2 and 3D1. there would be a total of two Units for purposes of the table (one plus one-half plus one-half) and the combined offense level would be 17. Amended effective November 1. and that Groups 5 to 8 levels less serious should be treated as equal to one-half of a Group. if the most serious Group is at offense level 15 and if two other Groups are at level 10. Commentary Application Notes: 1. departure would be warranted in the unusual case where the additional offenses resulted in a total of significantly more than 5 Units. determine the number of Units that the remaining Groups represent. there will be no increase in the offense level resulting from the additional counts. Groups 9 or more levels less serious than the most serious Group should not be counted for purposes of the table. it is possible that if there are several minor offenses that are not grouped together. 2009 but may provide a reason for sentencing at the higher end of the sentencing range for the applicable offense level. To avoid this anomalous result and produce declining marginal punishment. the court will have latitude to impose added punishment by sentencing toward the upper end of the range authorized for the most serious offense. In such cases. that approach was not adopted because of its complexity. Finally. When the most serious Group carries an offense level substantially higher than that applicable to the other Groups. the approach adopted in this section could produce adjustments for the additional counts that are inadequate or excessive.§3D1. increase the offense level for the most serious Group by the number of levels indicated in the table corresponding to the total number of Units. identify the offense level applicable to the most serious Group. Ordinarily. amendment 350). Again. the combined offense level is the level corresponding to the Group determined in accordance with §3D1. application of the rules in this Part could result in an excessive increase in the sentence range. 2.3 may produce a single Group of Closely Related Counts. Background: When Groups are of roughly comparable seriousness. Situations in which there will be inadequate scope for ensuring appropriate additional punishment for the additional crimes are likely to be unusual and can be handled by departure from the guidelines. – 368 – . however. Thus. If there are several groups and the most serious offense is considerably more serious than all of the others. 1987. An alternative method for ensuring more precise adjustments would have been to determine the appropriate offense level adjustment through a more complicated mathematical formula. counting the lesser Groups fully for purposes of the table could add excessive punishment. each Group will represent one Unit. possibly even more than those offenses would carry if prosecuted separately. The procedure for calculating the combined offense level when there is more than one Group of Closely Related Counts is as follows: First.3. assign it one Unit. such situations should be infrequent and can be handled through departure. Next. Application of the rules in §§3D1. 1990 (see Appendix C. Inasmuch as the maximum increase provided in the guideline is 5 levels. In unusual circumstances.

because the offense level for bribery (22) is less than the offense level for the drug offenses (28).1(b)). As the first three counts are 6 levels lower than the fourth. – 369 – 2. 1987. (2) distribution of 150 grams of cocaine. or Trafficking)).1.November 1.1. illustrate the operation of the guidelines for multiple counts. drawn from presentence reports in the Commission’s files. The combined offense level is 31. In addition. The combined offense level for drug offenses is determined by the total quantity of drugs. Each would represent a distinct Group. and the offense level for the most serious (28) is therefore increased by 3 levels under the table. 2009 GUIDELINES MANUAL §3D1.000 was taken and a firearm was displayed. The examples are discussed summarily. Historical Note: Effective November 1. each charging robbery of a different bank. and the third count translates into 75 kilograms of marihuana. * * * * * Illustrations of the Operation of the Multiple-Count Rules The following examples. Part B (Career Offenders and Criminal Livelihood). (4) offering a DEA agent $20.1 (Unlawful Manufacturing. this offense level is increased by 2 levels to 28 under §3C1. Importing. the offense level was 22 (20 plus a 2-level increase because a financial institution was robbed) (§2B3. In the fourth robbery $12.5.2(c). 1. converted to marihuana equivalents (using the Drug Equivalency Tables in the Commentary to §2D1. Defendant A was convicted on four counts. Altogether there are 2 1/2 Units. a more thorough. (3) distribution of 75 grams of heroin. The first count translates into 46 kilograms of marihuana. Commentary This section refers the court to Chapter Five (Determining the Sentence) in order to determine the total punishment to be imposed based upon the combined offense level. The total is 151 kilograms of marihuana. the offense level was therefore 28. because of the attempted bribe of the DEA agent.5 §3D1. Because the conduct constituting the bribery offense is accounted for by §3C1. each of the first three represents one-half unit for purposes of §3D1. Determining the Total Punishment Use the combined offense level to determine the appropriate sentence in accordance with the provisions of Chapter Five. The combined offense level is subject to adjustments from Chapter Three.2. . it becomes part of the same Group as the drug offenses pursuant to §3D1. The combined offense level is 28 pursuant to §3D1.1 (Obstructing or Impeding the Administration of Justice). Part E (Acceptance of Responsibility) and Chapter Four. In each of the first three robberies. the combined offense level for the drug offenses is 26. Exporting. Under §2D1. Defendant C was convicted on four counts: (1) distribution of 230 grams of cocaine.000 to avoid prosecution. the second count translates into 30 kilograms of marihuana. step-by-step approach is recommended until the user is thoroughly familiar with the guidelines. §3D1.4.3(a).

1 (Bribery in Procurement of Bank Loan and Other Commercial Bribery).1 (Theft.1 (assuming the application of the "sophisticated means" enhancement in §2B1. November 1. amendment 737). 2009 Defendant D was convicted of four counts arising out of a scheme pursuant to which the defendant received kickbacks from subcontractors. GUIDELINES MANUAL November 1. 1991 (see Appendix C. Property Destruction. which results in an offense level of 16 under either §2B1. amendment 617). 1989 (see Appendix C. 1987. November 1. November 1. (2) The defendant received $12. and Fraud). amendment 350).000 from subcontractor A relating to contract X (Commercial Bribery). – 370 – . Amended effective November 1. The total money involved is $74. (3) The defendant received $15. 1990 (see Appendix C. 1995 (see Appendix C. The bribery counts are covered by §2B4. Historical Note: Effective November 1. amendment 534). 2001 (see Appendix C. amendment 417). The counts were as follows: (1) The defendant received $27.000 from subcontractor B relating to contract Z (Commercial Bribery). the combined offense level is 16. which treats the offense as a sophisticated fraud. amendment 303). November 1.000 from subcontractor A relating to contract Y (Mail Fraud).§3D1.000 from subcontractor A relating to contract X (Mail Fraud). Since these two guidelines produce identical offense levels.1. November 1. 2009 (see Appendix C. (4) The defendant received $20. The mail fraud counts are covered by §2B1.5 3.000.1(b)(9)) or §2B4.

thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently. or affirmatively admit. appropriate considerations include. If the defendant qualifies for a decrease under subsection (a). voluntary termination or withdrawal from criminal conduct or associations.3 (Relevant Conduct). voluntary assistance to authorities in the recovery of the fruits and instrumentalities of the offense. voluntary surrender to authorities promptly after commission of the offense. (b) (c) (d) (e) (f) – 371 – . A defendant may remain silent in respect to relevant conduct beyond the offense of conviction without affecting his ability to obtain a reduction under this subsection. In determining whether a defendant qualifies under subsection (a). voluntary resignation from the office or position held during the commission of the offense. relevant conduct beyond the offense of conviction in order to obtain a reduction under subsection (a). the following: (a) truthfully admitting the conduct comprising the offense(s) of conviction. or frivolously contests. relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility. Note that a defendant is not required to volunteer. and truthfully admitting or not falsely denying any additional relevant conduct for which the defendant is accountable under §1B1.November 1. the offense level determined prior to the operation of subsection (a) is level 16 or greater. Acceptance of Responsibility (a) If the defendant clearly demonstrates acceptance of responsibility for his offense. (b) Commentary Application Notes: 1. but are not limited to.1. voluntary payment of restitution prior to adjudication of guilt. 2009 GUIDELINES MANUAL §3E1. decrease the offense level by 1 additional level.ACCEPTANCE OF RESPONSIBILITY §3E1. decrease the offense level by 2 levels. a defendant who falsely denies. and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty. However.1 PART E .

however. The timeliness of the defendant’s acceptance of responsibility is a consideration under both subsections. Because the Government is in the best position to determine whether the defendant has assisted authorities in a manner that avoids preparing for trial. 2009 post-offense rehabilitative efforts (e. Subsection (b) provides an additional 1-level decrease in offense level for a defendant at offense level 16 or greater prior to the operation of subsection (a) who both qualifies for a decrease under subsection (a) and who has assisted authorities in the investigation or prosecution of his own misconduct by taking the steps set forth in subsection (b).. In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial.1 may apply. and only then admits guilt and expresses remorse. 6.1 (g) (h) 2. For example. Conviction by trial. will constitute significant evidence of acceptance of responsibility for the purposes of subsection (a).1 (Obstructing or Impeding the Administration of Justice) ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct. be extraordinary cases in which adjustments under both §§3C1. a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct. In general. Conduct resulting in an enhancement under §3C1.g. does not automatically preclude a defendant from consideration for such a reduction. the determination of the sentencing judge is entitled to great deference on review. 5. however. this evidence may be outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility. and truthfully admitting or not falsely denying any additional relevant conduct for which he is accountable under §1B1. This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt.. Subsection (a) provides a 2-level decrease in offense level. an adjustment under subsection (b) may only be granted upon a formal motion by the Government at the time of sentencing. . In each such instance. 4. the conduct qualifying for a decrease in offense level under subsection (b) will occur particularly early in the case. counseling or drug treatment). This may occur. however. for example. GUIDELINES MANUAL November 1. where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e. the defendant must have notified authorities of his intention to enter a plea of guilty at a sufficiently early point in the process so that the government may avoid preparing for trial and the court may schedule its calendar efficiently.1 and 3E1. A defendant who enters a guilty plea is not entitled to an adjustment under this section as a matter of right. The sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility. and is context specific. Entry of a plea of guilty prior to the commencement of trial combined with truthfully admitting the conduct comprising the offense of conviction. is convicted. For this reason. See section 401(g)(2)(B) of Public Law 108–21. – 372 – 3. There may. However. and the timeliness of the defendant’s conduct in manifesting the acceptance of responsibility.g.3 (Relevant Conduct) (see Application Note 1(a)). to qualify under subsection (b).§3E1. to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct).

and the Background Commentary. Historical Note: Effective November 1. Such a defendant has accepted responsibility in a way that ensures the certainty of his just punishment in a timely manner. – 373 – . November 1. Subsection (a) provides a 2-level decrease in offense level. 2003. At offense level 15 or lower. however. the reduction in the guideline range provided by a 2-level decrease in offense level under subsection (a) (which is a greater proportional reduction in the guideline range than at higher offense levels due to the structure of the Sentencing Table) is adequate for the court to take into account the factors set forth in subsection (b) within the applicable guideline range. amendment 258). 1987. Section 401(g) of Public Law 108–21 directly amended subsection (b). effective April 30. 2003 (see Appendix C. amendment 649). amendment 459). Application Note 6 (including adding the last paragraph of that application note). to a defendant whose offense level is level 15 or lower prior to application of subsection (a).November 1.1 Background: The reduction of offense level provided by this section recognizes legitimate societal interests. 1988 (see Appendix C. the actions listed above (or some equivalent action) is appropriately given a lower offense level than a defendant who has not demonstrated acceptance of responsibility. November 1. April 30. November 1. amendment 351). in a timely fashion. thereby appropriately meriting an additional reduction. 1989 (see Appendix C. Subsection (b) provides an additional 1-level decrease for a defendant at offense level 16 or greater prior to operation of subsection (a) who both qualifies for a decrease under subsection (a) and has assisted authorities in the investigation or prosecution of his own misconduct by taking the steps specified in subsection (b). 2009 GUIDELINES MANUAL §3E1. Subsection (b) does not apply. 1990 (see Appendix C. a defendant who clearly demonstrates acceptance of responsibility for his offense by taking. amendment 46). For several reasons. Amended effective January 15. 1992 (see Appendix C.

C. Historical Note: Effective November 1. General deterrence of criminal conduct dictates that a clear message be sent to society that repeated criminal behavior will aggravate the need for punishment with each recurrence. The specific factors included in §4A1. Part A. Add 2 points for each prior sentence of imprisonment of at least sixty days not counted in (a). the likelihood of recidivism and future criminal behavior must be considered. including probation. or escape status. §4A1.3 are consistent with the extant empirical research assessing correlates of recidivism and patterns of career criminal behavior. parole. e. While empirical research has shown that other factors are correlated highly with the likelihood of recidivism. imprisonment..1 and §4A1. Add 2 points if the defendant committed the instant offense less than two years after release from imprisonment on a sentence counted under (a) or (b) or while (b) (c) (d) (e) – 374 – . work release. up to a total of 4 points for this item. 2009 CHAPTER FOUR .S. A defendant with a record of prior criminal behavior is more culpable than a first offender and thus deserving of greater punishment. the Commission will review additional data insofar as they become available in the future.1. Repeated criminal behavior is an indicator of a limited likelihood of successful rehabilitation.§4A1. However. for policy reasons they were not included here at this time.1 GUIDELINES MANUAL November 1. Add 2 points if the defendant committed the instant offense while under any criminal justice sentence. Add 1 point for each prior sentence not counted in (a) or (b). supervised release. 1987. § 3553(a)(2). To protect the public from further crimes of the particular defendant. The Commission has made no definitive judgment as to the reliability of the existing data.g.CRIMINAL HISTORY AND CRIMINAL LIVELIHOOD PART A .) A defendant’s record of past criminal conduct is directly relevant to those purposes. Criminal History Category The total points from items (a) through (f) determine the criminal history category in the Sentencing Table in Chapter Five. age and drug abuse. (See 18 U.CRIMINAL HISTORY Introductory Commentary The Comprehensive Crime Control Act sets forth four purposes of sentencing. (a) Add 3 points for each prior sentence of imprisonment exceeding one year and one month.

See §4A1.1(a). Therefore.November 1. parole. §§4A1. There is no limit to the number of points that may be counted under this item. A sentence for a foreign conviction. or a similar form of release. The term "prior sentence" is defined at §4A1.2(e). Certain prior sentences are not counted or are counted only under certain conditions: A sentence imposed more than ten years prior to the defendant’s commencement of the instant offense is not counted.2(e).2(h) and (j) and the Commentary to §4A1. a conviction that has been expunged.1 in imprisonment or escape status on such a sentence. 2. (b). or (c) above because such sentence was counted as a single sentence. §4A1.2(k).2.2(a).1(b). The term "sentence of imprisonment" is defined at §4A1. The term "sentence of imprisonment" is defined at §4A1. §4A1.2(b). add only 1 point for this item.2(k). up to a total of 3 points for this item. A sentence imposed for an offense committed prior to the defendant’s eighteenth birthday is counted under this item only if it resulted from an adult conviction. If 2 points are added for item (d).2(a). See §4A1.1 and 4A1. Commentary The total criminal history points from §4A1.2. (f) Add 1 point for each prior sentence resulting from a conviction of a crime of violence that did not receive any points under (a).2(d). The term "prior sentence" is defined at §4A1. Three points are added for each prior sentence of imprisonment exceeding one year and one month. or a similar form of release. There is no limit to the number of points that may be counted under this item. or an invalid conviction is not counted. see §4A1. Where a prior sentence of imprisonment resulted from a revocation of probation. Part A. See §4A1. Where a prior sentence of imprisonment resulted from a revocation of probation.2 govern the computation of the criminal history points.2 must be read together.2(b). Certain prior sentences are not counted or are counted only under certain conditions: A sentence imposed more than fifteen years prior to the defendant’s commencement of the instant offense is not counted unless the defendant’s incarceration extended into this fifteen-year period.1 determine the criminal history category (I-VI) in the Sentencing Table in Chapter Five. – 375 – . Application Notes: 1.1 and 4A1. see §4A1. 2009 GUIDELINES MANUAL §4A1. The following notes highlight the interaction of §§4A1.1(a). The definitions and instructions in §4A1. parole. Two points are added for each prior sentence of imprisonment of at least sixty days not counted in §4A1. See §4A1.

2(c)(1). (j). (j). Sentences for certain specified non-felony offenses are counted only if they meet certain requirements. See §4A1.2(c)(2). or an invalid conviction is not counted. imprisonment. Certain prior sentences are not counted or are counted only under certain conditions: A sentence imposed more than ten years prior to the defendant’s commencement of the instant offense is not counted. See §4A1. See §4A1. §4A1. A maximum of four points may be counted under this item.2(f).1(a) or (b). See §4A1. 4. See §4A1. A sentence for a foreign conviction. although active supervision is not required for this item – 376 – . a tribal court conviction.1 GUIDELINES MANUAL November 1. or an invalid conviction. a "criminal justice sentence" means a sentence countable under §4A1. A military sentence is counted only if imposed by a general or special court martial. The term "prior sentence" is defined at §4A1. and the Commentary to §4A1. (i). For the purposes of this item.2.2(h).2(g).2 (Definitions and Instructions for Computing Criminal History) having a custodial or supervisory component.§4A1. §4A1. A military sentence is counted only if imposed by a general or special court martial. is not counted. See §4A1.2(d). or escape status. parole.2.2(n). Two points are added if the defendant committed any part of the instant offense (i. 3.2(d).2(g).. See §4A1. See §4A1. Failure to report for service of a sentence of imprisonment is to be treated as an escape from such sentence. See §4A1. an expunged conviction. any relevant conduct) while under any criminal justice sentence. an expunged conviction.1(d).2(e).2(h).2(a).1(c). supervised release. 2009 An adult or juvenile sentence imposed for an offense committed prior to the defendant’s eighteenth birthday is counted only if confinement resulting from such sentence extended into the five-year period preceding the defendant’s commencement of the instant offense. work release.2(c)(2). Sentences for certain specified non-felony offenses are never counted. and the Commentary to §4A1. Sentences for certain specified non-felony offenses are never counted. A sentence for a foreign conviction or a tribal court conviction. See §4A1. An adult or juvenile sentence imposed for an offense committed prior to the defendant’s eighteenth birthday is counted only if imposed within five years of the defendant’s commencement of the current offense. (i).e. One point is added for each prior sentence not counted under §4A1. A diversionary disposition is counted only where there is a finding or admission of guilt in a judicial proceeding. including probation. See §4A1. See §4A1.

(b). "crime of violence" has the meaning given that term in §4B1.3 authorizes the court to depart from the otherwise applicable criminal history category in certain circumstances. §4A1. and foreign. If the defendant received a five-year sentence of imprisonment for one robbery and a four-year sentence of imprisonment for the other robbery (consecutively or concurrently). Without the second sentence.1(a) or (b). A total of up to 3 points may be added under §4A1. would not be included. But no additional point is added under §4A1.1(a) (a one-year sentence of imprisonment and a consecutive nine-month sentence of imprisonment are treated as a combined one-year-nine-month sentence of imprisonment). §4A1.e.2(a)(2).2(a). 5. a term of unsupervised probation would be included. See §4A1.2(a)(2)). only one point is added under §4A1. and military courts. parole.2(p). For purposes of this guideline. This also applies if the defendant committed the instant offense while in imprisonment or escape status on such a sentence. a probation. There are jurisdictional variations in offense definitions.1(a). if two points are added under §4A1. In recognition of the imperfection of this measure however. fifty state systems. 6. See §4A1.1(a).1(f).1(d). a defendant’s criminal history includes two robbery convictions for offenses committed on different occasions. or (c)). criminal history categories are based on the maximum term imposed in previous sentences rather than on other measures.2(n). by itself. a total of 3 points also is added under §4A1.1(a). 2009 GUIDELINES MANUAL §4A1.1(e). The sentences for these offenses were imposed on the same day and are counted as a single prior sentence. For example.1(f) because the sentence for the second robbery already resulted in an additional point under §4A1.. Failure to report for service of a sentence of imprisonment is to be treated as an escape from such sentence. However. tribal.1(f) for each such sentence that did not result in any additional points under §4A1. For example.1(b) for the one-year sentence of imprisonment. a total of 3 points is added under §4A1. A defendant who commits the instant offense while a violation warrant from a prior sentence is outstanding (e. In a case in which the defendant received two or more prior sentences as a result of convictions for crimes of violence that are counted as a single sentence (see §4A1.1(f). and manner of sentence pronouncement.g.November 1. even if that sentence would have expired absent such warrant. but a sentence to pay a fine. the defendant would only have received two points under §4A1. Background: Prior convictions may represent convictions in the federal system. or supervised release violation warrant) shall be deemed to be under a criminal justice sentence for the purposes of this provision if that sentence is otherwise countable.1 to apply. §4A1. To minimize problems with imperfect measures of past crime seriousness. In contrast. any relevant conduct) less than two years following release from confinement on a sentence counted under §4A1. territories. one point is added under §4A1. sentencing structures.2(m). or (c). See §4A1.1(e). if the defendant received a one-year sentence of imprisonment for one robbery and a nine-month consecutive sentence of imprisonment for the other robbery.. – 377 – . (b).1(a). the District of Columbia. An additional point is added under §4A1. Two points are added if the defendant committed any part of the instant offense (i. See §4A1. such as whether the conviction was designated a felony or misdemeanor.1(f) because the second sentence did not result in any additional point(s) (under §4A1.

1991 (see Appendix C. 1989 (see Appendix C. Historical Note: Effective November 1. Section 4A1. (b).2.. a defendant who falls within both (d) and (e) is more likely to commit additional crimes.1(c). amendments 259-261).1 distinguish confinement sentences longer than one year and one month. amendment 709). the defendant is arrested for the first offense prior to committing the second offense). probation. (3) A conviction for which the imposition or execution of sentence was totally suspended or stayed shall be counted as a prior sentence under §4A1. and (c) of §4A1.1(a) or (b). For purposes of applying §4A1. In the case of a conviction for an offense – 378 – (2) (4) . trial. and residency in a halfway house. determine whether those sentences are counted separately or as a single sentence.1 GUIDELINES MANUAL November 1. shorter confinement sentences of at least sixty days. If the defendant has multiple prior sentences.1(e) implements another measure of recency by adding two points if the defendant committed any part of the instant offense less than two years immediately following his release from confinement on a sentence counted under §4A1. for conduct not part of the instant offense. or (B) the sentences were imposed on the same day. If consecutive sentences were imposed.1(d) implements one measure of recency by adding two points if the defendant was under a criminal justice sentence during any part of the instant offense. 2007 (see Appendix C. if prior sentences are counted as a single sentence. However. Prior sentences always are counted separately if the sentences were imposed for offenses that were separated by an intervening arrest (i. If there is no intervening arrest.1(c) if a sentence resulting from that conviction otherwise would be countable. Definitions and Instructions for Computing Criminal History (a) Prior Sentence (1) The term "prior sentence" means any sentence previously imposed upon adjudication of guilt. November 1. 1987. Where a defendant has been convicted of an offense. Count any prior sentence covered by (A) or (B) as a single sentence. amendment 651).§4A1. thus.1(a).e. October 27. such conviction shall be counted as if it constituted a prior sentence under §4A1. or plea of nolo contendere. use the aggregate sentence of imprisonment. whether by guilty plea. fines. amendments 381 and 382). such as confinement sentences of less than sixty days. §4A1. (d) and (e) are not completely combined. and (c).1(f). See also §4A1. 2003 (see Appendix C. use the longest sentence of imprisonment if concurrent sentences were imposed. and all other sentences. 2009 Subdivisions (a). (b). Because of the potential overlap of (d) and (e). prior sentences are counted separately unless (A) the sentences resulted from offenses contained in the same charging instrument. their combined impact is limited to three points. but not yet sentenced. Section 4A1. November 1. Amended effective November 1.

If part of a sentence of imprisonment was suspended. are counted only if (A) the sentence was a term of probation of more than one year or a term of imprisonment of at least thirty days. are never counted: Fish and game violations Hitchhiking Juvenile status offenses and truancy Local ordinance violations (except those violations that are also violations under state criminal law) Loitering – 379 – . except as follows: (1) Sentences for the following prior offenses and offenses similar to them. (b) Sentence of Imprisonment Defined (1) The term "sentence of imprisonment" means a sentence of incarceration and refers to the maximum sentence imposed. or plea of nolo contendere. 2009 GUIDELINES MANUAL §4A1. whether by guilty plea.2 set forth in §4A1.November 1." for the purposes of this provision. "Convicted of an offense. or (B) the prior offense was similar to an instant offense: Careless or reckless driving Contempt of court Disorderly conduct or disturbing the peace Driving without a license or with a revoked or suspended license False information to a police officer Gambling Hindering or failure to obey a police officer Insufficient funds check Leaving the scene of an accident Non-support Prostitution Resisting arrest Trespassing. (2) (c) Sentences Counted and Excluded Sentences for all felony offenses are counted. by whatever name they are known. apply this provision only where the sentence for such offense would be countable regardless of type or length.2(c)(1). by whatever name they are known. "sentence of imprisonment" refers only to the portion that was not suspended. Sentences for misdemeanor and petty offenses are counted. means that the guilt of the defendant has been established. trial. (2) Sentences for the following prior offenses and offenses similar to them.

1(c) even if a conviction is not formally entered. except that diversion from juvenile court is not counted. The applicable time period for certain sentences resulting from offenses committed prior to age eighteen is governed by §4A1. or a plea of nolo contendere.1(a) for each such sentence.2 GUIDELINES MANUAL November 1. Also count any prior sentence of imprisonment exceeding one year and one month.1(c) for each adult or juvenile sentence imposed within five years of the defendant’s commencement of the instant offense not covered in (A). Any other prior sentence that was imposed within ten years of the defendant’s commencement of the instant offense is counted.g. whenever imposed.g..§4A1. (2) (3) (4) (f) Diversionary Dispositions Diversion from the judicial process without a finding of guilt (e. deferred prosecution) is not counted.2(d)(2). that resulted in the defendant being incarcerated during any part of such fifteen-year period. (A) add 2 points under §4A1.1(b) for each adult or juvenile sentence to confinement of at least sixty days if the defendant was released from such confinement within five years of his commencement of the instant offense. 2009 Minor traffic infractions (e. A diversionary disposition resulting from a finding or admission of guilt. (d) Offenses Committed Prior to Age Eighteen (1) If the defendant was convicted as an adult and received a sentence of imprisonment exceeding one year and one month. speeding) Public intoxication Vagrancy. in a judicial proceeding is counted as a sentence under §4A1. In any other case.. – 380 – . add 3 points under §4A1. (2) (B) (e) Applicable Time Period (1) Any prior sentence of imprisonment exceeding one year and one month that was imposed within fifteen years of the defendant’s commencement of the instant offense is counted. add 1 point under §4A1. Any prior sentence not within the time periods specified above is not counted.

1(e) in respect to the recency of last release from confinement. parole. (A) Revocation of probation.1(a).3 (Adequacy of Criminal History Category).2(d)(2)(A)). (k) Revocations of Probation. Parole. The resulting total is used to compute the criminal history points for §4A1. For the purposes of determining the applicable time period. Mandatory Release.3 (Adequacy of Criminal History Category). parole. as applicable. or (c).2(d)(2)(B) and (e)(2)).3 (Adequacy of Criminal History Category). or mandatory release. the date of the defendant’s last release from confinement on such sentence (see §4A1. parole. (j) Expunged Convictions Sentences for expunged convictions are not counted. special parole. the date of the original sentence (see §4A1. or mandatory release may affect the points for §4A1. but may be considered under §4A1. the date of last release from incarceration on such sentence (see §4A1. Revocation of probation. or mandatory release may affect the time period under which certain sentences are counted as provided in §4A1.2 (g) Military Sentences Sentences resulting from military offenses are counted if imposed by a general or special court martial. but may be considered under §4A1. supervised release.2(d)(2) and (e). (2) (B) – 381 – . (h) Foreign Sentences Sentences resulting from foreign convictions are not counted. supervised release. special parole. (i) Tribal Court Sentences Sentences resulting from tribal court convictions are not counted. supervised release. add the original term of imprisonment to any term of imprisonment imposed upon revocation. but may be considered under §4A1. 2009 GUIDELINES MANUAL §4A1. Sentences imposed by a summary court martial or Article 15 proceeding are not counted.November 1. special parole. (b). and (iii) in any other case.2(e)(1)). (ii) in the case of any other confinement sentence for an offense committed prior to the defendant’s eighteenth birthday. or Supervised Release (1) In the case of a prior revocation of probation. use the following: (i) in the case of an adult term of imprisonment totaling more than one year and one month.

In the case of an offense set forth in §4A1. See §4A1. Prior Sentence. 2009 Sentences on Appeal Prior sentences under appeal are counted except as expressly provided below.1(a).1(f). §4A1.2(a). a "felony offense" means any federal. a defendant who commits the instant offense while a violation warrant from a prior sentence is outstanding (e. is a prior sentence if it was for conduct other than conduct that was part of the instant offense.2(a)(4).2(a)(4) only where the – 382 – . Conduct that is part of the instant offense means conduct that is relevant conduct to the instant offense under the provisions of §1B1. a conviction for which the defendant has not yet been sentenced is treated as if it were a prior sentence under §4A1.1(e) shall not apply.2(a). the definition of "crime of violence" is that set forth in §4B1.—"Prior sentence" means a sentence imposed prior to sentencing on the instant offense.g. In the case of a prior sentence.3 (Relevant Conduct).1(d). or local offense punishable by death or a term of imprisonment exceeding one year.2(c)(1) (which lists certain misdemeanor and petty offenses). (m) Effect of a Violation Warrant For the purposes of §4A1. even if that sentence would have expired absent such warrant. (n) Failure to Report for Service of Sentence of Imprisonment For the purposes of §4A1. or supervised release violation warrant) shall be deemed to be under a criminal justice sentence if that sentence is otherwise countable. parole. (c). regardless of the actual sentence imposed. a probation. Commentary Application Notes: 1. §4A1. state. a conviction for which the defendant has not yet been sentenced is treated as if it were a prior sentence under §4A1. failure to report for service of a sentence of imprisonment shall be treated as an escape from such sentence. A sentence imposed after the defendant’s commencement of the instant offense. (p) Crime of Violence Defined For the purposes of §4A1. other than a sentence for conduct that is part of the instant offense.2 (l) GUIDELINES MANUAL November 1. Under §4A1.§4A1.1(c) if a sentence resulting from such conviction otherwise would have been counted.1(d) and (e)..2(c). (b). the execution of which has been stayed pending appeal. (d). and (f) shall apply as if the execution of such sentence had not been stayed. (o) Felony Offense For the purposes of §4A1. but prior to sentencing on the instant offense.

the stated maximum is five years.2(c)(1) are counted only if they are of a specified type and length). or (B) have been ruled constitutionally invalid in a prior case are not to be counted. the length of a sentence of imprisonment is the stated maximum (e.3 (Adequacy of Criminal History Category). this guideline and commentary do not confer upon the defendant any right to attack collaterally a prior conviction or sentence beyond any such rights otherwise recognized in law (e. 5. in the case of an indeterminate sentence for a term not to exceed five years. For example. 21 U. Sentences Imposed in the Alternative.—Sentences resulting from convictions that (A) have been reversed or vacated because of errors of law or because of subsequently discovered evidence exonerating the defendant. 3.—Convictions for driving while intoxicated or under the influence (and similar offenses by whatever name they are known) are counted. In such a case. 2.—Counting multiple prior sentences as a single sentence may result in a criminal history score that underrepresents the seriousness of the defendant’s criminal history and the danger that the defendant presents to the public. in the case of an indeterminate sentence of one to five years. Sentence of Imprisonment.2(b)(1) and (2). § 851 expressly provides that a defendant may collaterally attack certain prior convictions).1(c) unless a condition of probation requiring imprisonment of at least sixty days was imposed. and the resulting sentences were counted as a single sentence because either the sentences resulted from offenses contained in the same charging instrument or the defendant was sentenced for these offenses on the same day. Vacated. A sentence of probation is to be treated as a sentence under §4A1. the stated maximum is five years.. the stated maximum is the amount of time in pre-trial detention plus the amount of time between the date of sentence and the defendant’s twenty-first birthday). if the defendant escaped. Upward Departure Provision. Such offenses are not minor traffic infractions within the meaning of §4A1.2 offense is similar to the instant offense (because sentences for other offenses set forth in §4A1. criminal history points are based on the sentence pronounced.—To qualify as a sentence of imprisonment.1(a). 6.November 1. For the purposes of applying §4A1. would have served time).000 fine or ninety days’ imprisonment) is treated as a non-imprisonment sentence.2(a)(3) and (b)(2). – 383 – . 4. See §4A1.g.g. Sentences for Driving While Intoxicated or Under the Influence. in the case of an indeterminate sentence for a term not to exceed the defendant’s twenty-first birthday. (b). or Invalidated Convictions. the defendant must have actually served a period of imprisonment on such sentence (or. not the length of time actually served. Reversed. the criminal conduct underlying any conviction that is not counted in the criminal history score may be considered pursuant to §4A1.. the stated maximum is five years. or (c). Nonetheless. That is. See §4A1. an upward departure may be warranted.. $1. 2009 GUIDELINES MANUAL §4A1.g. if a defendant was convicted of a number of serious non-violent offenses committed on different occasions.2(c). the assignment of a single set of points may not adequately reflect the seriousness of the defendant’s criminal history or the frequency with which the defendant has committed crimes.—A sentence which specifies a fine or other nonincarcerative disposition as an alternative to a term of imprisonment (e. With respect to the current sentencing proceeding. in the case of a determinate sentence of five years.C.S.

the sentence given upon revocation should be added to the original sentence of imprisonment. the term "commencement of the instant offense" includes any relevant conduct. e. 11. and the total should be counted as if it were one sentence. By this approach. If one sentence had been a "straight" probationary sentence and the other had been a probationary sentence that had required service of 15 days of imprisonment. 10..2(d)(2) and (e) establishes the time period within which prior sentences are counted. This reflects a policy that defendants who receive the benefit of a rehabilitative sentence and continue to commit crimes should not be treated with further leniency. add the term of imprisonment imposed upon revocation to the sentence that will result in the greatest increase in criminal history points. however.—Section 4A1.g.2 7. the court may consider this information in determining whether an upward departure is warranted under §4A1.2(f) requires counting prior adult diversionary dispositions if they involved a judicial determination of guilt or an admission of guilt in open court. Where a revocation applies to multiple sentences. only those that resulted in adult sentences of imprisonment exceeding one year and one month. Attempting to count every juvenile adjudication would have the potential for creating large disparities due to the differential availability of records.2(a)(2).3 (Adequacy of Criminal History Category). did not exceed one year and one month. To avoid disparities from jurisdiction to jurisdiction in the age at which a defendant is considered a "juvenile.2(j). probation was revoked on both sentences as a result of the same violation conduct. If the sentence originally imposed. if any. for offenses committed prior to age eighteen. Therefore.—A number of jurisdictions have various procedures pursuant to which previous convictions may be set aside or the defendant may be pardoned for reasons unrelated to innocence or errors of law. in order to restore civil rights or to remove the stigma associated with a criminal conviction. or serious dissimilar. 9. As used in §4A1. the sentence imposed upon revocation. Revocations to be Considered. even if probation or conditional release was subsequently revoked." this provision applies to all offenses committed prior to age eighteen. each counted separately under §4A1. and such sentences are counted separately under §4A1. 2009 Offenses Committed Prior to Age Eighteen.2(a)(2).2(k) covers revocations of probation and other conditional sentences where the original term of imprisonment imposed. Convictions Set Aside or Defendant Pardoned.2(d) covers offenses committed prior to age eighteen.§4A1. or resulted in imposition of an adult or juvenile sentence or release from confinement on that sentence within five years of the defendant’s commencement of the instant offense are counted. criminal conduct. Example: A defendant was serving two probationary sentences. Sentences resulting from such convictions are to be counted. Diversionary Dispositions. expunged convictions are not counted. Rather than count the original sentence and the resentence after revocation as separate sentences. or the total of both sentences exceeded one year and one month. at the time of revocation another sentence was imposed for a new criminal conviction. If. if any. GUIDELINES MANUAL November 1.3 (Relevant Conduct). . See §1B1. the revocation term of imprisonment (45 days) would be – 384 – 8. that conviction would be computed separately from the sentence imposed for the revocation.—Section 4A1. no more than three points will be assessed for a single conviction. If the court finds that a sentence imposed outside this time period is evidence of similar. However.2(d)(2) and (e). Applicable Time Period.—Section 4A1. and the defendant was sentenced to a total of 45 days of imprisonment. the maximum three points would be assigned. §4A1.—Section 4A1.

are to be counted in the criminal history score. including uncounseled misdemeanor sentences where imprisonment was not imposed. 2007 (see Appendix C. amendment 493). Application of Subsection (c). does not include any conviction establishing that the defendant used a false name or non-existent account. the court should use a common sense approach that includes consideration of relevant factors such as (i) a comparison of punishments imposed for the listed and unlisted offenses. 1990 (see Appendix C. TYPES OF INFORMATION FORMING THE BASIS FOR UPWARD DEPARTURE. 1989 (see Appendix C. sentences for such offenses are to be treated as if the defendant had been convicted under state law. November 1. an upward departure may be warranted. 1993 (see Appendix C. Local Ordinance Violations.1(c) (for the other probationary sentence). amendment 472). November 1. 1992 (see Appendix C. (ii) the perceived seriousness of the offense as indicated by the level of punishment. (iv) the level of culpability involved.1(b) (for the combined 60-day term of imprisonment) and 1 criminal history point under §4A1. larceny and assault misdemeanors) that are also violations of state criminal law. 2009 GUIDELINES MANUAL §4A1.—"Insufficient funds check. amendment 709).. (iii) the elements of the offense.3.—In determining whether an unlisted offense is similar to an offense listed in subdivision (c)(1) or (c)(2).g. amendments 381 and 382).g." as used in §4A1.— (A) In General.November 1. Departures Based on Inadequacy of Criminal History Category (Policy Statement) (a) UPWARD DEPARTURES. November 1. amendments 262-265).—If reliable information indicates that the defendant’s criminal history category substantially under-represents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes. This would result in a total of 2 criminal history points under §4A1. amendments 352 and 353). §4A1. Historical Note: Effective November 1..3 added to the probationary sentence that had the 15-day term of imprisonment. a municipal court) to exercise jurisdiction over such offenses. not otherwise excluded.—The information described in subsection (a) may include information concerning the following: (2) – 385 – . 1991 (see Appendix C. Such offenses are excluded from the definition of local ordinance violations in §4A1.— (1) STANDARD FOR UPWARD DEPARTURE.2(c)(2) and. Amended effective November 1. This enables a local court (e. 12. November 1. 1987. and (v) the degree to which the commission of the offense indicates a likelihood of recurring criminal conduct. November 1. (B) (C) Background: Prior sentences.2(c)(1). Insufficient Funds Check. therefore.— A number of local jurisdictions have enacted ordinances covering certain offenses (e.

— (A) CRIMINAL HISTORY CATEGORY I. a downward departure may be warranted.§4A1.—Except as provided in subdivision (B). are sufficient to warrant an upward departure from Criminal History Category VI. Prior sentence(s) of substantially more than one year imposed as a result of independent crimes committed on different occasions..—A departure below the lower limit of the applicable guideline range for Criminal History Category I is prohibited. DETERMINATION OF EXTENT OF UPWARD DEPARTURE. (B) (C) (D) (E) (3) PROHIBITION. taken together.3 (A) GUIDELINES MANUAL November 1. Whether the defendant was pending trial or sentencing on another charge at the time of the instant offense. the court should structure the departure by moving incrementally down the sentencing table to the next higher offense level in Criminal History Category VI until it finds a guideline range appropriate to the case. 2009 Prior sentence(s) not used in computing the criminal history category (e. Prior similar adult criminal conduct not resulting in a criminal conviction.—In a case in which the court determines that the extent and nature of the defendant’s criminal history. (2) – 386 – . Prior similar misconduct established by a civil adjudication or by a failure to comply with an administrative order.—A prior arrest record itself shall not be considered for purposes of an upward departure under this policy statement.— (1) STANDARD FOR DOWNWARD DEPARTURE. UPWARD DEPARTURES FROM CATEGORY VI. as a reference.— (A) IN GENERAL. the criminal history category applicable to defendants whose criminal history or likelihood to recidivate most closely resembles that of the defendant’s.—If reliable information indicates that the defendant’s criminal history category substantially over-represents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes. PROHIBITIONS.g. sentences for foreign and tribal offenses). (4) (B) (b) DOWNWARD DEPARTURES. the court shall determine the extent of a departure under this subsection by using.

In the case of a downward departure.1 (Application Instructions).2 IN EVENT OF DOWNWARD DEPARTURE TO CATEGORY I.—A downward departure under this subsection is prohibited for (i) an armed career criminal within the meaning of §4B1. (3) LIMITATIONS. the defendant had more than one criminal history point under §4A1. LIMITATION ON APPLICABILITY OF §5C1. the court shall specify in writing the following: (1) In the case of an upward departure. "downward departure".3 (B) ARMED CAREER CRIMINAL AND REPEAT AND DANGEROUS SEX OFFENDER. Definitions.November 1. the specific reasons why the applicable criminal history category substantially over-represents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes. (2) Commentary Application Notes: 1. 2009 GUIDELINES MANUAL §4A1.1 (Criminal History Category). the terms "depart".1 (Career Offender) may not exceed one criminal history category. and (ii) a repeat and dangerous sex offender against minors within the meaning of §4B1. (B) (c) WRITTEN SPECIFICATION OF BASIS FOR DEPARTURE.—In departing from the otherwise applicable criminal history category under this policy statement. and "upward departure" have the meaning given those terms in Application Note 1 of the Commentary to §1B1. – 387 – . the specific reasons why the applicable criminal history category substantially under-represents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes. before receipt of the downward departure.—For purposes of this policy statement.—A defendant whose criminal history category is Category I after receipt of a downward departure under this subsection does not meet the criterion of subsection (a)(1) of §5C1.—The extent of a downward departure under this subsection for a career offender within the meaning of §4B1.2 (Limitation on Applicability of Statutory Maximum Sentences in Certain Cases) if.— (A) LIMITATION ON EXTENT OF DOWNWARD DEPARTURE FOR CAREER OFFENDER.4 (Armed Career Criminal).5 (Repeat and Dangerous Sex Offender Against Minors). "departure".

for example.— (A) GUIDELINES MANUAL November 1. In determining whether an upward departure from Criminal History Category VI is warranted.—A downward departure from the defendant’s criminal history category may be warranted if. assaultive conduct who had received what might now be considered extremely lenient treatment in the past might have the same criminal history category as a defendant who had a record of less serious conduct.—An upward departure from the defendant’s criminal history category may be warranted based on any of the following circumstances: (i) (ii) A previous foreign sentence for a serious offense. Upward Departures. Receipt of a prior consolidated sentence of ten years for a series of serious assaults. 3. Background: This policy statement recognizes that the criminal history score is unlikely to take into account all the variations in the seriousness of criminal history that may occur. (iii) (iv) (B) Upward Departures from Criminal History Category VI.§4A1.g. Downward Departures. Commission of the instant offense while on bail or pretrial release for another serious offense. due to the fact that the lower limit of the guideline range for Criminal History Category I is set for a first offender with the lowest risk