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

12 (Lack of Guidance as a Youth and Similar Circumstances). A GUIDELINES MANUAL November 1. 2009 for the large number of diverse harms arising in different circumstances. 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. quadratic roots and other mathematical operations that the Commission considered too complex to be workable. the guidelines take account of a number of important.4 (Physical Condition.19 (Post-Sentencing Rehabilitative Efforts) list several factors that the court cannot take into account as grounds for departure. the Commission moved closer to a charge offense system. In its initial set of guidelines submitted to Congress in April 1987." 18 U. Sex. The Commission intends the sentencing courts to treat each guideline as carving out a "heartland. the last sentence of §5K2. however. Furthermore. For one thing. In the Commission’s view. a sentencing court may control any inappropriate manipulation of the indictment through use of its departure power. 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." a set of typical cases embodying the conduct that each guideline describes. specific offense characteristics.S. 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. National Origin. Of course. does contain a significant number of real offense elements. however. the court may consider whether a departure is warranted. 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. 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. This system.000. for example.12 (Coercion and Duress). Finally. (b) Departures. cross references. or the amount of money actually taken. commonly occurring real offense elements such as role in the offense. and SocioEconomic Status). Section 5H1. The effort proposed as a solution to these problems required the use of. §5H1. –6– . through alternative base offense levels. that could constitute grounds for departure in an unusual case. not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.Ch. the Commission will closely monitor charging and plea agreement practices and will make appropriate adjustments should they become necessary. Creed. § 3553(b). and §5K2. such a system risked return to wide disparity in sentencing practice. or to a degree. 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.C. For another. the Commission does not intend to limit the kinds of factors. each count of which charges sale of 100 grams of heroin or theft of $10. the third sentence of §5H1. the same as a single-count indictment charging sale of 300 grams of heroin or theft of $30. When a court finds an atypical case. Moreover. The Commission recognized that a charge offense system has drawbacks of its own. 1 Pt. whether or not mentioned anywhere else in the guidelines. Including Drug or Alcohol Dependence or Abuse).10 (Race. the presence of a gun.000. For example. With those specific exceptions. one to which a particular guideline linguistically applies but where conduct significantly differs from the norm. the guidelines treat a three-count indictment. and adjustments. Religion.

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

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

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

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

Similarly. it will cure wide disparity. permit courts to exercise the greatest permissible range of sentencing discretion. whether $10. the guidelines will apply to more than 90 percent of all felony and Class A misdemeanor cases in the federal courts. estimated at approximately 10 percent over a period of ten years. It examined the many hundreds of criminal statutes in the United States Code. At the same time. (h) The Sentencing Table. Although the data available to it. a sample of 10. and at the same time preserves the maximum degree of allowable discretion for the court within each level. experience with the guidelines will lead to additional information and provide a firm empirical basis for consideration of revisions. as representing too little a departure from pre-guidelines sentencing practice. produced by the Commission and the Bureau of Prisons in 1987. the table should discourage unnecessary litigation. are imperfect. § 994(b)(2)). Each level in the table prescribes ranges that overlap with the ranges in the preceding and succeeding levels. The Commission has established a sentencing table that for technical and practical reasons contains 43 levels. are projected to lead to an increase in prison population that computer models.000 was obtained as a result of a fraud. The guidelines. 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. many of the individual guidelines refer to tables that correlate amounts of money with offense levels.November 1. It developed additional distinctions relevant to the application of these provisions and it applied sentencing ranges to each resulting category. 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. 2009 GUIDELINES MANUAL Ch. Thus. it minimizes the likelihood of litigation because the precise amount of money involved is of considerably less importance. These tables often have many rather than a few levels. Again. The table overlaps offense levels meaningfully. By overlapping the ranges. If a money table were to make only a few distinctions. It began with those that were the basis for a significant number of prosecutions and sought to place them in a rational order. the parole guidelines.000 or $11. Where a table has many small monetary distinctions. and policy judgments. Finally. 1 Pt. the reason is to minimize the likelihood of unnecessary litigation. like all data.000 augmented presentence reports. A legislated mandatory minimum or career offender sentences). Yet.C. little purpose will be served in protracted litigation trying to determine.S. A change of six levels roughly doubles the sentence irrespective of the level at which one starts. A Concluding Note The Commission emphasizes that it drafted the initial guidelines with considerable caution. The Commission recognizes that some will criticize this approach as overly cautious. Because of time constraints and the nonexistence of – 11 – . The Commission is a permanent body that can amend the guidelines each year. 5. for example. the levels work to increase a sentence proportionately. works proportionately.000 convictions. each distinction would become more important and litigation over which category an offender fell within would become more likely. it relied upon pre-guidelines sentencing practice as revealed by its own statistical analyses based on summary reports of some 40. In doing so.

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. while lacking the mandatory features that Congress enacted. 361 (1989). A GUIDELINES MANUAL November 1. 488 U. retains other features that help to further congressional objectives. 1 Pt. The Court concluded that an advisory guideline system would "continue to move sentencing in Congress’ preferred direction. This statement finds resonance in a line of Supreme Court cases that. Although Congress has delegated significant discretion to the Commission to draw judgments from its analysis of existing sentencing practice and alternative sentencing models. including providing certainty and fairness in meeting the purposes of sentencing. CONTINUING EVOLUTION AND ROLE OF THE GUIDELINES The Sentencing Reform Act of 1984 changed the course of federal sentencing. in light of application experience. which upheld the constitutionality of both the federal sentencing guidelines and the Commission against nondelegation and separation of powers challenges. helping to avoid excessive sentencing disparities while maintaining flexibility sufficient to individualize sentences where necessary." Id. 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. taken together. 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. some offenses that occur infrequently are not considered in the guidelines. 543 U. In Booker. and directed it to develop guidelines and policy statements for sentencing courts to use when sentencing offenders convicted of federal crimes. .S. . Id. Among other things. . The continuing importance of the guidelines in federal sentencing was further acknowledged by the Court in United States v. echo two themes. The Court reasoned that an advisory guideline system. and establish education and research programs. 2. 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. even as that case rendered the guidelines advisory in nature. Booker. at 264-65. at 379 (internal quotation marks and citations omitted).S.Ch. as new criminal statutes are enacted. the Act created the United States Sentencing Commission as an independent agency in the Judicial Branch. 2009 statistical information. The mandate rested on congressional awareness that sentencing is a dynamic field that requires continuing review by an expert body to revise sentencing policies. avoiding unwarranted sentencing disparities. An advisory – 12 – . The Supreme Court alluded to this in Mistretta v. Their exclusion does not reflect any judgment regarding their seriousness and they will be addressed as the Commission refines the guidelines over time. it empowered the Commission with ongoing responsibilities to monitor the guidelines. and maintaining sufficient flexibility to permit individualized sentences when warranted. United States. submit to Congress appropriate modifications of the guidelines and recommended changes in criminal statutes. labor-intensive task for which delegation to an expert body is especially appropriate. [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. and as more is learned about what motivates and controls criminal behavior. Moreover. 220 (2005). and as such they continue to play an important role in the sentencing court’s determination of an appropriate sentence in a particular case.

See Rita. Ct. Ct. 127 S. Gall v. Consequently. 991(b)(1). 128 S. district courts are required to properly calculate and consider the guidelines when sentencing. 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. § 3553(a) .S.S. United States. 586. and that the Commission’s process for promulgating guidelines results in "a set of Guidelines that seek to embody the § 3553(a) considerations. but not greater than necessary. to comply with" the basic aims of sentencing as set out above. to seek public input on the operation of the guidelines. 127 S." id. Ct. The appellate court "first ensure[s] that the district court committed no significant procedural error. A guideline system also continues to promote certainty and predictability in sentencing. . at 2465.C. the Court relied heavily on the complementary roles of the Commission and the sentencing court in federal sentencing.C. the Guidelines should be the starting point and the initial benchmark. .S. in determining the appropriate sentence in a particular case. the other at wholesale. Congress referred to the basic sentencing objectives that the statute sets forth in 18 U. Rita. Booker. such as failing to calculate (or improperly calculating) the Guidelines range . Ct.. therefore. The district court. The second and related theme resonant in this line of Supreme Court cases is that. at 597. The provision also tells the sentencing judge to "impose a sentence sufficient." Gall. as contemplated by the Sentencing Reform Act. As the Court acknowledged in Rita: – 13 – . 1 Pt. See 18 U. . 127 S.C. They are the product of the Commission’s fulfillment of its statutory duties to monitor federal sentencing law and practices. 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. § 3553(a)(4). §§ 994(f). Congressional statutes then tell the Commission to write Guidelines that will carry out these same § 3553(a) objectives. Id. The appellate court engages in a two-step process upon review. United States. and then the factors under 18 U. thereby enabling the parties to better anticipate the likely sentence based on the individualized facts of the case. 596 (2007) ("As a matter of administration and to secure nationwide consistency. at 2464. tak[ing] into account the totality of the circumstances. In Rita. . . In instructing both the sentencing judge and the Commission what to do. both in principle and in practice. at 264 ("The district courts. .C. .S. 543 U. The continuing importance of the guidelines in the sentencing determination is predicated in large part on the Sentencing Reform Act’s intent that. at retail. 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. the Commission must take into account the purposes of sentencing as set forth in 18 U. See 28 U. 128 S. the guidelines are evolutionary in nature."). . must consider the properly calculated guideline range.] . 2456 (2007).C. must . 2009 GUIDELINES MANUAL Ch. including the extent of any variance from the Guidelines range. (a)(5). and to revise the guidelines accordingly. while not bound to apply the Guidelines.S. § 3553(a). Ct.S." Id. [and] then consider[s] the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard[. at 2463 (emphasis in original).November 1. even in an advisory guideline system. . The Supreme Court reinforced this view in Rita v. take them into account when sentencing. in promulgating guidelines. the one. § 3553(a). the grounds for departure provided in the policy statements. at 2465 (stating that a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range).").

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

United States Code. November 1. A 3. November 1. 1992 (see Appendix C. Amended effective November 1. amendment 538). 1987.1. 1996 (see Appendix C. 1989 (see Appendix C. November 1. November 1. 1 Pt. Historical Note: Effective November 1. including amendments thereto. amendment 466). and commentary promulgated or amended pursuant to specific congressional directive. United States Code. November 1. 1995 (see Appendix C. and (2) with respect to guidelines. – 15 – . are promulgated by the United States Sentencing Commission pursuant to: (1) section 994(a) of title 28. 2003 (see Appendix C. 2008 (see Appendix C. pursuant to the authority contained in that directive in addition to the authority under section 994(a) of title 28. November 1. §1A3. October 27. amendment 307). amendments 67 and 68). and commentary set forth in this Guidelines Manual. 1990 (see Appendix C. amendments 717 and 725) . amendment 534). 2000 (see Appendix C. policy statements.November 1. policy statements. AUTHORITY Authority The guidelines. amendment 651). amendments 602 and 603). 2009 GUIDELINES MANUAL Ch.

§1B1. the offense guideline section from Chapter Two (Offense Conduct) applicable to the offense of conviction. Apply the adjustment as appropriate for the defendant’s acceptance of responsibility from Part E of Chapter Three. fines. pursuant to §1B1. role. If there are multiple counts of conviction. Apply the adjustments as appropriate related to victim. Determine the base offense level and apply any appropriate specific offense characteristics. and to any other policy statements or commentary in the guidelines that might warrant consideration in imposing sentence.1 GUIDELINES MANUAL November 1. See §1B1. cross references. 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 – . Determine the guideline range in Part A of Chapter Five that corresponds to the offense level and criminal history category determined above. Refer to Parts H and K of Chapter Five. For the particular guideline range. and restitution. determine from Parts B through G of Chapter Five the sentencing requirements and options related to probation. the provisions of this manual are to be applied in the following order: (a) Determine.1. and C of Chapter Three. and obstruction of justice from Parts A. Application Instructions Except as specifically directed. and special instructions contained in the particular guideline in Chapter Two in the order listed.2 (Applicable Guidelines). supervision conditions. (b) (c) (d) (e) (f) (g) (h) (i) Commentary Application Notes: 1.2. Apply Part D of Chapter Three to group the various counts and adjust the offense level accordingly. imprisonment. Specific Offender Characteristics and Departures. Determine from Part B of Chapter Four any other applicable adjustments. repeat steps (a) through (c) for each count. B. 2009 PART B .GENERAL APPLICATION PRINCIPLES §1B1. Determine the defendant’s criminal history category as specified in Part A of Chapter Four.

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

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

and Fraud). Applicable Guidelines (a) Determine the offense guideline section in Chapter Two (Offense Conduct) applicable to the offense of conviction (i. Fraud and Deceit. 6.2. Amended effective January 15. the adjustments for different degrees of bodily injury (subdivisions (A)-(E)) are not added together. Where two or more guideline provisions appear equally applicable. In the case of lengthy guideline headings. E. Offenses Involving Stolen Property. November 1. shooting a police officer during the commission of a robbery may warrant an injury enhancement under §2B3. For example.2 of bodily injury. but the guidelines authorize the application of only one such provision. amendments 69-72 and 303). adjustments. 1997 (see Appendix C. a parenthetical restatement of that other guideline’s heading accompanies the initial reference to that other guideline. amendment 651). In some cases. This parenthetical is provided only for the convenience of the reader and is not intended to have substantive effect. 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. Property Damage or Destruction.1(b)(3) and an official victim adjustment under §3A1. §1B1. if a firearm is both discharged and brandished. November 1.—Whenever a guideline makes reference to another guideline. adjustments under Chapter Three. in §2A2.1 (Theft. 1990 (see Appendix C. 2000 (see Appendix C. 1991 (see Appendix C. Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States) may be abbreviated as follows: §2B1.November 1. amendments 591 and 601). amendment 388). 1988 (see Appendix C. (B) Cumulative Application of Multiple Adjustments from Multiple Guidelines. 2001 (see Appendix C. Historical Note: Effective November 1. the provision applicable to the discharge of the firearm would be used. November 1. 1993 (see Appendix C.2(b)(2). – 19 – . For example.—Absent an instruction to the contrary. determine the offense guideline section in Chapter Two applicable to the stipulated offense. amendment 617). 2006 (see Appendix C. 1987. Use of Abbreviated Guideline Titles. amendment 497). and Other Forms of Theft. amendment 684). November 1. 2003 (see Appendix C. 1989 (see Appendix C. references to §2B1. amendment 661). use the provision that results in the greater offense level. Forgery.2. and determinations may be triggered by the same conduct. November 1. Embezzlement. November 1.. Property Destruction. 2003 (see Appendix C. the subdivision that best describes the level of bodily injury is used. November 1. November 1. the offense conduct charged in the count of the indictment or information of which the defendant was convicted). such a parenthetical restatement of the guideline heading may be abbreviated for ease of reference. and determinations under Chapter Four are to be applied cumulatively. amendments 545 and 546). even though the enhancement and the adjustment both are triggered by the shooting of the officer. amendment 1). November 1.g. such enhancements. 2009 GUIDELINES MANUAL §1B1. enhancements under Chapter Two. October 27.e. 5. However.1 (Larceny.. amendment 361).

the Chapter Two offense guideline section applicable to the stipulated offense is to be used. or solicitation. and the Statutory Index will specify only one offense guideline for that offense of conviction. refer to §2X1. determined pursuant to §2X5. the offense of conviction and the conduct proscribed by the statute will coincide. or solicitation. the most analogous guideline.2 GUIDELINES MANUAL November 1. use the most analogous guideline. Solicitation. If the offense involved a conspiracy. For statutory provisions not listed in the Statutory Index. referenced in the Statutory Index for the offense of conviction. (b) After determining the appropriate offense guideline section pursuant to subsection (a) of this section.1 (Attempt. 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). The court is to use the Chapter Two guideline section referenced in the Statutory Index (Appendix A) for the offense of conviction. the Statutory Index may specify more than one offense guideline for that particular statute. 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.3 (Relevant Conduct). See §2X5. refer to §2X1. or Conspiracy) as well as the guideline referenced in the Statutory Index for the substantive offense. 2009 Refer to the Statutory Index (Appendix A) to determine the Chapter Two offense guideline. 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. If the offense involved a conspiracy.1 (Other Offenses). 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. See §2X5.9 (Class B or C Misdemeanors and Infractions). attempt. (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. the most analogous guideline is to be used. (c) (d) Commentary Application Notes: 1.1 (Other Offenses). See §1B1. is to be used.1 (Other Offenses).§1B1. However. Solicitation. In the case of a particular statute that proscribes only a single type of criminal conduct. attempt. or Conspiracy) as well as the guideline referenced in the Statutory Index for the substantive offense. In the case of a particular statute that proscribes a variety of conduct that might constitute the subject of different offense guidelines. determine the applicable guideline range in accordance with §1B1. and (B) for statutory provisions not listed in the Statutory Index. The guidelines do not apply to any count of conviction that is a Class B or C misdemeanor or an infraction. – 20 – .1 (Attempt.

the guideline section applicable to the stipulated offense is to be used. a factual statement or stipulation made after the plea agreement has been entered. and Fraud) contains monetary distinctions which are more significant and more detailed than the monetary distinctions in §2B3. Without this exception. Accordingly. Then. However. Part D (Multiple Counts) are to be applied although there may be only one count of conviction. The limited exception provided here applies only after the court has determined that a plea.3. once it has determined the applicable guideline (i. Part B (Plea Agreements). and any other applicable sentencing factors pursuant to the relevant conduct definition in §1B1. the determination of the applicable base offense level is treated in the same manner as a determination of a specific offense characteristic. 2.2(a) to determine any applicable specific offense characteristics (under that guideline)..e. See Chapter Five. Subsection (c) provides that in the case of a stipulation to the commission of additional – 21 – 3. but admits the elements of robbery as part of the plea agreement. the applicable guideline section from Chapter Two) under §1B1. The sentence. the "relevant conduct" criteria of §1B1. if the defendant pleads guilty to theft. This cumbersome. however. the robbery guideline is to be applied. The sentence that shall be imposed is limited. Section 1B1. this guideline might even contain characteristics that are difficult to establish or not very important in the context of the actual offense conduct. 2d Sess. For example. Rep. The probation officer would first be required to calculate the guideline for the offense of conviction.3 are to be used.. 2009 GUIDELINES MANUAL §1B1.1 (Robbery). 98-1017. unless conviction under a specific statute is expressly required. As a simple example. See H. 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. Subsections (c) and (d) address circumstances in which the provisions of Chapter Three. Part G (Implementing the Total Sentence of Imprisonment). However.1 (Theft. to the maximum authorized by the statute under which the defendant is convicted. As with any plea agreement. the court must first determine that the agreement is acceptable. in accordance with the policies stated in Chapter Six. In a case in which the elements of an offense more serious than the offense of conviction are established by a plea agreement. .2(b) directs the court. Where there is more than one base offense level within a particular guideline. or after any modification to the plea agreement has been made. 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. artificial procedure is avoided by using the exception rule in guilty or nolo contendere plea cases where it is applicable. it may unduly complicate the sentencing process if the applicable guideline does not reflect the seriousness of the defendant’s actual conduct. §2B1. otherwise fitting the exception. 98th Cong. may not exceed the maximum sentence for theft. The exception to the general rule has a practical basis. 99 (1984). Property Destruction. 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. is acceptable. 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. however.2 As set forth in the first paragraph of this note.November 1.

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

and any other information specified in the applicable guideline. 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 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. the court must first determine the scope of the criminal activity the particular defendant agreed to jointly undertake (i. endeavor.November 1. accomplice.. the focus is on the specific acts and omissions for which the defendant is to be held accountable in determining the applicable guideline range. scheme. Under subsections (a)(1) and (a)(2). and hence relevant conduct is not necessarily the same for every participant. A "jointly undertaken criminal activity" is a criminal plan. (3) (4) (b) Chapters Four (Criminal History and Criminal Livelihood) and Five (Determining the Sentence). 2009 GUIDELINES MANUAL §1B1. 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.e. 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. Commentary Application Notes: 1.2(d) would require grouping of multiple counts.3 (2) solely with respect to offenses of a character for which §3D1. The principles and limits of sentencing accountability under this guideline are not always the same as the principles and limits of criminal liability. In order to determine the defendant’s accountability for the conduct of others under subsection (a)(1)(B). rather than on whether the defendant is criminally liable for an offense as a principal. The conduct of others that was not in – 23 – . Because a count may be worded broadly and include the conduct of many participants over a period of time. The conduct of others that was both in furtherance of. the criminal activity jointly undertaken by the defendant is relevant conduct under this provision. 2. or enterprise undertaken by the defendant in concert with others. and reasonably foreseeable in connection with that criminal activity. In the case of a jointly undertaken criminal activity. all harm that resulted from the acts and omissions specified in subsections (a)(1) and (a)(2) above. and reasonably foreseeable in connection with. 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. whether or not charged as a conspiracy.

. Regardless of the number of bales he personally unloaded. in such a case. In determining the scope of the criminal activity that the particular defendant agreed to jointly undertake (i. Defendant A aided and abetted the off-loading of the – 24 – . such conduct is addressed under subsection (a)(1)(A).3 GUIDELINES MANUAL November 1. all reasonably foreseeable quantities of contraband that were within the scope of the criminal activity that he jointly undertook. in the case of a jointly undertaken criminal activity. Note that the criminal activity that the defendant agreed to jointly undertake.e. or was not reasonably foreseeable in connection with that criminal activity. procures. 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. Defendant A is accountable for the entire oneton quantity of marihuana. is not relevant conduct under this provision. counsels. during the course of that robbery. commands.e. 2009 furtherance of the criminal activity jointly undertaken by the defendant. the cocaine sold prior to the defendant joining the conspiracy is not included as relevant conduct in determining the defendant’s offense level). the defendant is accountable for all quantities of contraband with which he was directly involved and. abets. two defendants agree to commit a robbery and. 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. 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). It does not apply to conduct that the defendant personally undertakes.g. the first defendant assaults and injures a victim. are not necessarily identical. The requirement of reasonable foreseeability applies only in respect to the conduct (i. With respect to offenses involving contraband (including controlled substances). induces. A defendant’s relevant conduct does not include the conduct of members of a conspiracy prior to the defendant joining the conspiracy. or willfully causes. aids. even if the defendant knows of that conduct (e. Defendant A and the other off-loaders are arrested and convicted of importation of marihuana.. the scope of the specific conduct and objectives embraced by the defendant’s agreement). 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). and the reasonably foreseeable conduct of others in furtherance of that criminal activity. an upward departure may be warranted. the court may consider any explicit agreement or implicit agreement fairly inferred from the conduct of the defendant and others.. For example.§1B1. 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. acts and omissions) of others under subsection (a)(1)(B).

As noted earlier.000 is taken and a teller is assaulted and injured.e. – 25 – . 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.November 1. Therefore.3 entire shipment of marihuana by directly participating in the off-loading of that shipment (i. 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. he is accountable for the entire shipment under subsection (a)(1)(A) without regard to the issue of reasonable foreseeability. 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). In certain cases. of course. 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). As noted in the preceding paragraph. the taking of money was the specific objective of the jointly undertaken criminal activity). The specific circumstances of the case (the defendant was one of ten persons off-loading the marihuana in bales) also support this finding. 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). (b) Acts and omissions aided or abetted by the defendant. a defendant may be accountable for particular conduct under more than one subsection of this guideline. 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). 2009 GUIDELINES MANUAL §1B1.. it is not necessary to review alternative provisions under which such accountability might be established. therefore. In this example. if a defendant’s accountability for particular conduct is established under one provision of this guideline. the specific objective of the criminal activity he joined was the offloading of the entire shipment). This is conceptually similar to the case of a defendant who transports a suitcase knowing that it contains a controlled substance and. Defendant A is accountable for the entire one-ton shipment of marihuana under subsection (a)(1)(A). 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. Defendant A engaged in a jointly undertaken criminal activity (the scope of which was the importation of the shipment of marihuana). a defendant may be accountable for particular conduct under more than one subsection. In an actual case.

Defendant E is convicted of forging the $800 check and is accountable for the forgery of this check under subsection (a)(1)(A). Unknown to Defendant E. Defendants H. Defendants F and G each are accountable for the entire amount ($55. Defendants L and M are aware of each other’s criminal activity but operate independently.§1B1. Defendant K is a wholesale distributor of child pornography. design and execute a scheme to sell fraudulent stocks by telephone. 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. Defendant K is accountable under subsection (a)(1)(A) for the entire quantity of child pornography sold to Defendants L and M. Defendant M is a retail-level dealer who purchases child pornography from Defendant K and resells it. 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. Defendant G fraudulently obtains $35. 2009 Requirement that the conduct of others be in furtherance of the jointly undertaken criminal activity and reasonably foreseeable.000. and J are included in a single count charging conspiracy to import marihuana. Defendant F fraudulently obtains $20. 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 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). Defendant L is accountable under subsection (a)(1)(A) only for the quantity of – 26 – (2) (3) (4) . Similarly. but otherwise operates independently of Defendant K..000 was not in furtherance of the criminal activity he jointly undertook with Defendant D (i.000 because the fraudulent scheme to obtain $15. 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). Each is convicted of mail fraud. the forgery of the $800 check). Defendants F and G. Defendant N is Defendant K’s assistant who recruits customers for Defendant K and frequently supervises the deliveries to Defendant K’s customers. working together.e. Defendant L is a retail-level dealer who purchases child pornography from Defendant K and resells it. Each defendant is accountable for the amount he personally obtained under subsection (a)(1)(A).000). Each defendant is convicted of a count charging conspiracy to distribute child pornography. Defendant D then uses that check as a down payment in a scheme to fraudulently obtain $15.3 (c) GUIDELINES MANUAL November 1. Defendant E is not accountable for the $15.000. I.000 worth of merchandise. scope of the criminal activity (1) Defendant D pays Defendant E a small amount to forge an endorsement on an $800 stolen government check. but otherwise operates independently of Defendant K.

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

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

C. Engaging in Monetary Transactions in Property Derived from Unlawful Activity). under subsection (a)(2). The prior state prison sentence is counted under Chapter Four (Criminal History and Criminal Livelihood).1(c)(1). The instant federal offense (the offense of conviction) charges this latter sale.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. Examples: (1) The defendant was convicted for the sale of cocaine and sentenced to state prison.C. subsection (b)(2)(B) applies if the defendant "is convicted under 18 U.1. 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.S.S.g. (2) The defendant engaged in two cocaine sales constituting part of the same course of conduct or common scheme or plan. an offense involving an attempted theft of $800.4(a)(2) ("if the offense was committed by the means set forth in 18 U. not as part of the same course of conduct or common scheme or plan as the offense of conviction. Note. § 1956(h) and the sole object of that conspiracy was to commit an offense set forth in 18 U. § 1956) would be applied in determining the offense level under §2X3. in §2S1. use of a statutory reference to describe a particular set of circumstances does not require a conviction under the referenced statute. §2S1. Solicitation. Subsequently. For the purposes of subsection (a)(2). See Application Note 4 in the Commentary to §2X1. or both. § 1956 but would not be applied in a case in which the defendant is convicted of a conspiracy under 18 U. 8.C.S. Unless such an express direction is included.2(a)(1). The state prison sentence for that sale is not counted as a prior sentence. he again sold cocaine to the same person. An example of this usage is found in §2A3. he is then convicted in federal court for the second sale.C.000 and a completed theft of $30. 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. see §4A1. solicitation.S. 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.1. In this example. the cocaine sales are not separated by an intervening sentence. § 1957. however. For example.3 6. conviction under the statute is not required. Unless otherwise specified. or conspiracy). the inchoate offense (attempt.S. accessory after the fact. § 1956". he is arrested by state authorities for the first sale and by federal authorities for the second sale. or Conspiracy) whether the conviction is for the substantive offense.C. In the case of a partially completed offense (e. solicitation.1 (Attempt. For example.1(b)(2)(B) (which is applicable only if the defendant is convicted under 18 U. that Application Note 4 is not applicable where the offense level is determined under §2X1.November 1. using the same accomplices and modus operandi.S.C. the offense level is to be determined in accordance with §2X1. attempt. the cocaine sale associated with the state conviction is considered as relevant conduct to the instant federal offense. See Application Note 3(C) of §2S1. Therefore. Thus. aiding or abetting. 7. § 2242"). or misprision of felony in respect to that particular statute. Immediately upon release from prison.000). – 29 – . 2009 GUIDELINES MANUAL §1B1. the offense conduct relevant to the state prison sentence is considered as prior criminal history.. He is convicted in state court for the first sale and sentenced to imprisonment.1 (Laundering of Monetary Instruments. In this case.

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. 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. common accomplices. they must be substantially connected to each other by at least one common factor. Subsection (a) establishes a rule of construction by specifying. (B) 10. Background: This section prescribes rules for determining the applicable guideline sentencing range. the commonality of victims (the same investors were defrauded on an ongoing basis). "Common scheme or plan" and "same course of conduct" are two closely related concepts.. For two or more offenses to constitute part of a common scheme or plan.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. or accessory after the fact. spree. misprision. such conduct will be considered relevant conduct under subsection (a)(1). whereas §1B1. 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. the conduct for which the defendant is accountable includes all conduct relevant to determining the offense level for the underlying offense that was known. in certain cases. 2009 Note. not (a)(2). 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. or similar modus operandi. Same course of conduct. or ongoing series of offenses. i. common purpose.3 GUIDELINES MANUAL November 1.e. in the absence of more explicit instructions in the context of a specific guideline.g. commonality of purpose (to defraud the group of investors). In the case of solicitation. When one of the above factors is absent. or similarity of modus operandi (the same or similar computer manipulations were used to execute the scheme). commonality of offenders (the conduct constituted an ongoing conspiracy). such as common victims. For example. (A) Common scheme or plan. 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. Unless otherwise provided. which – 30 – . and the time interval between the offenses. a stronger showing of similarity or regularity is necessary to compensate for the absence of temporal proximity. 9. the range of conduct that is relevant to determining the applicable offense level (except for the determination of the applicable offense guideline. the regularity (repetitions) of the offenses. The nature of the offenses may also be a relevant consideration (e.. a stronger presence of at least one of the other factors is required. or reasonably should have been known. by the defendant. however. 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.§1B1. For example.

) Subsections (a)(1) and (a)(2) adopt different rules because offenses of the character dealt with in subsection (a)(2) (i. Subsection (a)(4) requires consideration of any other information specified in the applicable guideline. the scheme is an element of the offense and each mailing may be the basis for a separate count. Another consideration is that in a pattern of small thefts. which provides for grouping of multiple counts arising out of a continuing offense when the offense guideline takes the continuing nature into account. than with respect to other offenses such as assault. robbery and burglary. also prevents double counting. amendment 3). in an embezzlement case. §2K1. in a drug distribution case. Relying on the entire range of conduct. treating as a single count) all counts charging offenses of a type covered by this subsection. November 1.4 (Involuntary Manslaughter) specifies consideration of the defendant’s state of mind. the applicability of subsection (a)(2) does not depend upon whether multiple counts are alleged. in an embezzlement case. November 1. each taking may provide a basis for a separate count. 1989 (see Appendix C. November 1. amendment 674). regardless of the number of counts that are alleged or on which a conviction is obtained. Subsection (a)(2) provides for consideration of a broader range of conduct with respect to one class of offenses. Similarly. Amended effective January 15. for example. 2009 GUIDELINES MANUAL §1B1. (This is true whether the defendant is convicted of one or both robberies. primarily certain property.2(d). when §3D1.2(a)). even if both robberies were part of a single course of conduct or the same scheme or plan. fraud and drug offenses for which the guidelines depend substantially on quantity. The reference to §3D1. 1988 (see Appendix C. which provides for grouping together (i.November 1.. For example. 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. 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. 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.4 (Arson. 1987. for example.2(d) does not apply.. Property Damage By Use of Explosives) specifies consideration of the risk of harm created.3 is governed by §1B1. even though the overall conduct is clear. However. November 1. 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. amendment 503). amendment 389). tax. 1991 (see Appendix C. For example. it is important to take into account the full range of related conduct. November 1. The distinction is made on the basis of §3D1. November 1. 2004 (see Appendix C. §2A1. – 31 – . In addition.e. amendments 76-78 and 303). On the other hand. Thus.e. 1990 (see Appendix C. so that convictions on multiple counts are considered separately in determining the guideline sentencing range. identifiable units that are meaningful for purposes of sentencing. 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. Continuing offenses present similar practical problems. 2001 (see Appendix C. appears to be the most reasonable approach to writing workable guidelines for these offenses. in a mail fraud case. a pattern of embezzlement may consist of several acts of taking that cannot separately be identified. Conversely. amendment 309). 1992 (see Appendix C. in a robbery case in which the defendant robbed two banks. amendments 617 and 634). Thus.2(d) applies) often involve a pattern of misconduct that cannot readily be broken into discrete. November 1. the amount of money taken in one robbery would not be taken into account in determining the guideline range for the other robbery. Historical Note: Effective November 1. 1994 (see Appendix C.2(d). amendment 439). to which §3D1.

Historical Note: Effective November 1. if the defendant committed two robberies.C. (1) An instruction to use the offense level from another offense guideline refers to the offense level from the entire offense guideline (i. which recodifies 18 U. November 1. 1989 (see Appendix C. and special instructions). An instruction to use a particular subsection or table from another offense guideline refers only to the particular subsection or table referenced. November 1. November 1. § 3661.. §1B1. e. amendment 303). § 3661.. Commentary Background: This section distinguishes between factors that determine the applicable guideline sentencing range (§1B1. 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.5. Some policy statements do. 2004 (see Appendix C. the base offense level. GUIDELINES MANUAL November 1. however.C. amendment 604 ). (b) (2) (c) If the offense level is determined by a reference to another guideline under subsection (a) or (b)(1) above. and not to the entire offense guideline.S.3) and information that a court may consider in imposing sentence within that range. character and conduct of the defendant. For example. The recodification of this 1970 statute in 1984 with an effective date of 1987 (99 Stat.S.§1B1. and special instructions). amendment 674) . express a Commission policy that certain factors should not be considered for any purpose. specific offense characteristics. 1728). specific offense characteristics. 2000 (see Appendix C. cross references. cross references. Amended effective January 15.4. the court may consider.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. or should be considered only for limited purposes. See. 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. 1988 (see Appendix C.S. 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. but as part of a plea negotiation entered a guilty plea to only one. Chapter Five. the adjustments in Chapter Three (Adjustments) – 32 – . The section is based on 18 U.4 §1B1. or whether a departure from the guidelines is warranted. amendment 4). 1987. the base offense level.e.e. unless otherwise prohibited by law. § 3577. See 18 U.. Part H (Specific Offender Characteristics). any information concerning the background. without limitation. except as provided in subdivision (2) below. 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.g.

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

the commentary may suggest circumstances which. 2001 (see Appendix C. it may interpret the guideline or explain how it is to be applied. and the final number is the guideline. 1987. for example. §1B1. amendment 534). To illustrate: Historical Note: Effective November 1. §1B1. Failure to follow such commentary could constitute an incorrect application of the guidelines.6. the letter represents the part of the chapter. Section 2B1. 1989 (see Appendix C. Amended effective November 1. The first number is the chapter. amendment 440). First. the commentary may provide background – 34 – . Policy statements are similarly identified. Finally. may warrant departure from the guidelines. November 1. amendment 429). 1991 (see Appendix C. in the view of the Commission. November 1. is the first guideline in the first subpart in Part B of Chapter Two. 1995 (see Appendix C. 2004 (see Appendix C. and 302). subpart and individual guideline. the cross reference at §2K2. 1997 (see Appendix C. amendments 79. part. The parts are divided into subparts and individual guidelines. § 3742.C. Such commentary is to be treated as the legal equivalent of a policy statement. amendment 616). 80. November 1. the second number is the subpart.S. Or. November 1. subjecting the sentence to possible reversal on appeal. Second. Significance of Commentary The Commentary that accompanies the guideline sections may serve a number of purposes. November 1. 1992 (see Appendix C. 2009 firearm during commission of a series of offenses.7. amendment 666). §3A1.2 is the second guideline in the first subpart in Part A of Chapter Three.§1B1. November 1.1. Historical Note: Effective November 1. 1987. amendment 547). Each guideline is identified by three numbers and a letter corresponding to the chapter.1(c) is applied to the offense resulting in the greatest offense level. See 18 U.5 GUIDELINES MANUAL November 1. Structure of the Guidelines The guidelines are presented in numbered chapters divided into alphabetical parts.

United States. concerning the existence of prior convictions and sentences in determining §4A1. These are to be construed as commentary and thus have the force of policy statements. in a prosecution for perjury or giving a false statement.8 information.8. including factors considered in promulgating the guideline or reasons underlying promulgation of the guideline. "[C]ommentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute.S. or a plainly erroneous reading of. 1993 (see Appendix C." Stinson v. amendment 498). 1987. or is inconsistent with. such commentary may provide guidance in assessing the reasonableness of any departure from the guidelines. 508 U. 2009 GUIDELINES MANUAL §1B1. 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. §1B1. As with a policy statement. Amended effective November 1. in the event there is a breach of the cooperation agreement by the defendant. or in determining whether. then such information shall not be used in determining the applicable guideline range.November 1. except to the extent provided in the agreement. (b) (2) (3) (4) (5) – 35 – .1 (Career Offender).1 (Criminal History Category) and §4B1. Historical Note: Effective November 1. 36.1 (Substantial Assistance to Authorities). 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. Use of Certain Information (a) Where a defendant agrees to cooperate with the government by providing information concerning unlawful activities of others. 38 (1993). a downward departure from the guidelines is warranted pursuant to a government motion under §5K1. that guideline. 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. or to what extent.

is that information prohibited from being used to determine the applicable guideline range shall not be used to depart upward. where the defendant. a court may refuse to depart downward on the basis of such information.§1B1. as a corollary.1 (Substantial Assistance to Authorities).C. Plea Discussions. 3. The guideline operates as a limitation on the use of such incriminating information in determining the applicable guideline range.1 (Career Offender). and to what extent. § 6002. for example. provides such information to the probation officer preparing the presentence report. Under this provision. 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. 18 U. 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. 2. a downward departure is warranted pursuant to a government motion under §5K1.. pursuant to an agreement to provide information concerning the unlawful activities of co-conspirators. and Related Statements) of the Rules of Evidence. the policy of the Commission.1 (Criminal History Category) and §4B1. – 36 – .S. use of such information in a sentencing proceeding is restricted by Rule 11(f) (Admissibility or Inadmissibility of a Plea.. except to the extent provided in the agreement. a fact not previously known to the government. In contrast. subsection (b)(5) provides that consideration of such information is appropriate in determining whether. 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. 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. 4. 5.g. subsequent to having entered into a cooperation agreement. As with the statutory provisions governing use immunity. e. Although the guideline itself affects only the determination of the guideline range. and not merely as a restriction of the government’s presentation of such information (e.g.8 GUIDELINES MANUAL November 1. 2009 Commentary Application Notes: 1. In the event no agreement is reached. 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. admits that he assisted in the importation of an additional three kilograms of cocaine. the use of such information remains protected by this section). giving a false statement. On occasion the defendant will provide incriminating information to the government during plea negotiation sessions before a cooperation agreement has been reached. if a defendant is arrested in possession of a kilogram of cocaine and. this admission would not be used to increase his applicable guideline range. and Related Statements) of the Federal Rules of Criminal Procedure and Rule 410 (Inadmissibility of Pleas. Plea Discussions.

amendment 390). an agreement by the defendant simply to detail the extent of his own unlawful activities. the court should. amendment 81). Amended effective November 1. amendment 674).10. In imposing sentence. 1990 (see Appendix C. 1992 (see Appendix C. the Commission has exempted all Class B and C misdemeanors and infractions from the coverage of the guidelines. amendment 736). Historical Note: Effective June 15. 2004 (see Appendix C. 1989 (see Appendix C. an infraction is any offense for which the maximum authorized term of imprisonment is not more than five days. amendment 6). 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. The guidelines for sentencing on multiple counts do not apply to counts that are Class B or C misdemeanors or infractions.— (1) In General. amendment 441).9. §1B1. 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. Commentary Application Notes: 1. this guideline does not apply (i.November 1. 2009 GUIDELINES MANUAL §1B1. November 1. amendment 5). Unless the cooperation agreement relates to the provision of information concerning the unlawful activities of others. Historical Note: Effective June 15. however.—In a case in which a defendant is serving a term of imprisonment. amendment 308). 1988 (see Appendix C. Background: For the sake of judicial economy. Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement) (a) Authority. and the guideline range applicable to that defendant has – 37 – . Amended effective November 1.10 6. is not covered by this guideline). 1991 (see Appendix C. 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. not involving an agreement to provide information concerning the unlawful activity of another person. consider the relationship between the Class B or C misdemeanor or infraction and any other offenses of which the defendant is convicted. November 1. 2. Sentences for such offenses may be consecutive to or concurrent with sentences imposed on other counts..e. 2009 (see Appendix C. the court may impose any sentence authorized by statute for each count that is a Class B or C misdemeanor or an infraction. November 1. November 1. 1988 (see Appendix C. Notwithstanding any other provision of the guidelines. §1B1.

and to what extent. (B) (3) Limitation. Limitations and Prohibition on Extent of Reduction.S. 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.C.— (A) In General.— (1) In General. 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.C. § 3582(c)(2).S.C. a reduction comparably less than the amended guideline range determined under subdivision (1) of this subsection may be appropriate. § 3582(c)(2). 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 is warranted.—A reduction in the defendant’s term of imprisonment is not consistent with this policy statement and therefore is not authorized under 18 U.—Except as provided in subdivision (B).—Consistent with subsection (b). However. § 3582(c)(2) and this policy statement do not constitute a full resentencing of 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. any such reduction in the defendant’s term of imprisonment shall be consistent with this policy statement.—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 making such determination. 2009 subsequently been lowered as a result of an amendment to the Guidelines Manual listed in subsection (c) below.§1B1.S. if the original term of imprisonment – 38 – (2) (B) .C.10 GUIDELINES MANUAL November 1. (2) Exclusions. Exception.S.—In determining whether. § 3582(c)(2) if— (A) none of the amendments listed in subsection (c) is applicable to the defendant. a reduction in the defendant’s term of imprisonment under 18 U. (b) Determination of Reduction in Term of Imprisonment.S. As required by 18 U. proceedings under 18 U.C. 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.C.

Public Safety Consideration.S. (c) Covered Amendments.C.—Eligibility for consideration under 18 U. Factors for Consideration. Post-Sentencing Conduct..—In no event may the reduced term of imprisonment be less than the term of imprisonment the defendant has already served. 490. § 3553(a) and United States v. 220 (2005). 543 U. 606.—Amendments covered by this policy statement are listed in Appendix C as follows: 126. (C) Prohibition. 454. § 3582(c)(2). but only within the limits described in subsection (b). 657. and (II) the extent of such reduction. § 3582(c)(2) is triggered only by an amendment listed in subsection (c) that lowers the applicable guideline range.— (i) In General. 706 as amended by 711. Application of Subsection (a). 371.C. 2009 GUIDELINES MANUAL §1B1. 156. 379. 484. a reduction in the defendant’s term of imprisonment is not authorized under 18 U.C. 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. a statutory mandatory minimum term of imprisonment). Accordingly.S. 341.10 constituted a non-guideline sentence determined pursuant to 18 U.g.S. 506.S. 269. the court shall consider the factors set forth in 18 U. 702. § 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. 488.C. a further reduction generally would not be appropriate.—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 – . 380. 130.—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. and (II) the extent of such reduction.S.November 1. 599.C.— (A) Eligibility. § 3553(a) in determining: (I) whether a reduction in the defendant’s term of imprisonment is warranted.—Consistent with 18 U. Booker. 591. 516. but only within the limits described in subsection (b). 329. 505. 499. 176. 461. Commentary Application Notes: 1.S. and 715. 433.

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

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

November 1. 1992 (see Appendix C. November 1. November 1. 1989 (see Appendix C. 1994 (see Appendix C. §1B1. * So in original. a revised edition of the Guidelines Manual became effective. the revised edition of the Guidelines Manual is to be applied to both offenses. if a court applies an earlier edition of the Guidelines Manual. it is to be used in its entirety. amendment 469). (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. May 1. November 5. 2008 (see Appendix C. 2000 (see Appendix C. amendment 710). 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. the court shall use the Guidelines Manual in effect on the date that the offense of conviction was committed. to the extent that such amendments are clarifying rather than substantive changes. The Committee does not believe the courts should be burdened with adjustments in these cases. November 1. amendment 423). 1991 (see Appendix C. Subsection (b)(2) provides that if an earlier edition of the Guidelines Manual is used." S. 1995 (see Appendix C. The Guidelines Manual in effect on a particular date shall be applied in its entirety. 2008 (see Appendix C. the court shall consider subsequent amendments. the first committed before. 2007 (see Appendix C. Historical Note: Effective November 1. November 1. Example: A defendant is convicted of an antitrust offense committed in November 1989. Effective November 1. amendment 607). amendments 712 and 713). November 1. (b) (2) (3) Commentary Application Notes: 1. 2003 (see Appendix C.§1B1. amendment 360). amendment 502). amendment 536). one guideline section from one edition of the Guidelines Manual and another guideline section from a different edition of the Guidelines Manual. 180 (1983). 98th Cong. 1993 (see Appendix C. 2009 of existing sentences falling above the old guidelines* or when there is only a minor downward adjustment in the guidelines. and the second after. The court shall not apply. amendment 548). If the defendant is convicted of two offenses. amendment 504). amendment 662). Rep. the Commission raised the – 42 – . Amended effective November 1. except that subsequent clarifying amendments are to be considered.. amendment 306). 1997 (see Appendix C. 1st Sess. 1990 (see Appendix C. 225. November 1.11. However. March 3. He is to be sentenced in December 1992.10 GUIDELINES MANUAL November 1. for example. 1991. amendment 716). Probably should be "to fall above the amended guidelines". November 1.

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

C. 1989) (similar).L. 2009 were enacted. See United States v.C. Therefore.5. Stephenson. 291 (1992).. 1992 (see Appendix C.the manual in effect at the time the last offense of conviction was completed and the manual in effect at the time of sentencing.2d 29 (4th Cir. the November 1991 Guidelines Manual should be used to determine a combined guideline range for both counts.S. Thus.2d 438 (2d Cir. See generally United States v. cert. However. Consequently. 901 F.1-3D1. Allen. R. 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. 887 F. 503 U. 5G1. United States v.12. The ex post facto clause does not distinguish between groupable and nongroupable offenses. 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. denied. 886 F. Moreover.§1B1. see also United States v. 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). 1989) (upholding inclusion of pre-November 1. In this example. United States v. 1062 (1990). 1987. amendment 442). it will not be necessary to compare more than two manuals to determine the applicable guideline range -. a contrary conclusion would mean that such defendant was subject to a lower guideline range than if convicted only of the second offense. noting that habitual offender statutes routinely augment punishment for an offense of conviction based on acts committed before a law is passed). 921 F. amendment 474).S.2d 697 (6th Cir. a single sentencing range is determined based on the defendant’s overall conduct. even in a complex case involving multiple counts that occurred under several different versions of the Guidelines Manual. Congress’s directive to apply the sentencing guidelines in effect at the time of sentencing must be followed. Amended effective November 1.2). Cusack. Historical Note: Effective November 1. 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. 1990) (similar). Under the guideline sentencing system. §1B1. – 44 – .2d 143 (8th Cir. §§ 5031-5042). amendment 475).S. Historical Note: Effective November 1. 1993 (see Appendix C. the ex post facto clause would not bar application of the amended guideline to the first conviction.2(d).11 GUIDELINES MANUAL November 1. even if there are multiple counts of conviction (see §§3D1. drug quantities as relevant conduct for the count of conviction. and unless that clause would be violated. if a defendant is sentenced in January 1992 for a bank robbery committed in October 1988 and one committed in November 1991. 1993 (see Appendix C. 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. and the second after. Ykema. 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. 493 U.

or is experiencing deteriorating physical or mental health because of the aging process. to the extent that they are applicable.C. § 3559(c) for the offense or offenses for which the defendant is imprisoned. (2) the defendant is not a danger to the safety of any other person or to the community.— (A) Extraordinary and Compelling Reasons.S. § 3142(g).S. As determined by the Director of the Bureau of Prisons. Application of Subsection (1)(A).S. § 3582(c)(1)(A). and (ii) has served at least 30 years in prison pursuant to a sentence imposed under 18 U. (3) Commentary Application Notes: 1. as provided in 18 U. 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. 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.November 1.C. The defendant is suffering from a permanent physical or medical condition. the court determines that— (1) (A) (B) extraordinary and compelling reasons warrant the reduction. and (iii). 2009 GUIDELINES MANUAL §1B1.C. extraordinary and compelling reasons exist under any of the following circumstances: (i) (ii) The defendant is suffering from a terminal illness.C. The death or incapacitation of the defendant’s only family member capable of caring for the defendant’s minor child or minor children. (ii).13 §1B1. 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. there exists in the defendant’s case an extraordinary and compelling reason other than. after considering the factors set forth in 18 U. or the defendant (i) is at least 70 years old. and the reduction is consistent with this policy statement.S. or in combination with.13.—Provided the defendant meets the requirements of subdivision (2). the reasons described in subdivisions (i). § 3553(a). (iii) (iv) – 45 – .

– 46 – .—Pursuant to 28 U. Background: This policy statement implements 28 U. Historical Note: Effective November 1. amendment 683). rehabilitation of the defendant is not.C.S. amendment 698). an extraordinary and compelling reason for purposes of subdivision (1)(A). Amended effective November 1. 2009 (B) Rehabilitation of the Defendant.13 GUIDELINES MANUAL November 1. 2. by itself. Application of Subdivision (3).—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. 2006 (see Appendix C. 2007 (see Appendix C. § 994(t).C.§1B1.S. § 994(t).

OFFENSE CONDUCT Introductory Commentary Chapter Two pertains to offense conduct. Parts A (VictimRelated Adjustments). 2 CHAPTER TWO . Chapter Four. and C (Obstruction). and Chapter Five. 1987. 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. 2009 GUIDELINES MANUAL Ch. Part B (Career Offenders and Criminal Livelihood). Certain factors relevant to the offense that are not covered in specific guidelines in Chapter Two are set forth in Chapter Three. B (Role in the Offense). 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. – 47 – . Part K (Departures).November 1.

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

Involuntary Manslaughter (a) Base Offense Level: (1) 12. November 1. 2282A. or degrading to the victim. cruel. Historical Note: Effective November 1. amendment 637). §§ 1111. November 1. 2332b(a)(1). 2004 (see Appendix C. amendment 663). 1987. amendment 82). Voluntary Manslaughter (a) Base Offense Level: 29 Commentary Statutory Provisions: 18 U. amendment 699). 2004 (see Appendix C. 2007 (see Appendix C.S. November 1. For additional statutory provision(s). see Appendix A (Statutory Index). 2002 (see Appendix C. November 1. 2291. brutal. 1993 (see Appendix C. November 1.November 1. This guideline applies when a sentence of death is not imposed under those specific provisions. amendment 637). See §5K2.2. November 1.S.—If the defendant’s conduct was exceptionally heinous. amendment 637). 2006 (see Appendix C. For additional statutory provision(s). or – 49 – .C.8 (Extreme Conduct). 2009 GUIDELINES MANUAL §2A1. November 1. amendment 663). §2A1. 2007 (see Appendix C. 1989 (see Appendix C. see Appendix A (Statutory Index). 2340A. 1841(a)(2)(C). Historical Note: Effective November 1. amendments 699 and 700). amendment 685). Application Note: 1.3. 1987. 2006 (see Appendix C. §2A1. November 1. amendment 685). 2007 (see Appendix C. Amended effective November 1. 1990 (see Appendix C. amendments 699 and 700). amendment 663). 2004 (see Appendix C.4. §2A1. November 1. 2291. 2002 (see Appendix C. an upward departure may be warranted. Amended effective November 1. 1987. 2332b(a)(1). 2006 (see Appendix C. amendment 310). 2199. November 1. §§ 1112. Second Degree Murder (a) Base Offense Level: 38 Commentary Statutory Provisions: 18 U.4 imposed under the specific provisions contained in that statute. if the offense involved criminally negligent conduct. Amended effective November 1. November 1. Upward Departure Provision. 2199. November 1. 2002 (see Appendix C. amendment 476). amendment 685).C. 1841(a)(2)(C). Historical Note: Effective November 1.

Offenses with this characteristic usually will be encountered as assimilative crimes.4 (2) GUIDELINES M ANUAL November 1. if the offense involved the reckless operation of a means of transportation. but which is not reckless. (b) Special Instruction (1) If the offense involved the involuntary manslaughter of more than one person. if the offense involved reckless conduct. or 22. § 1992(d)(7). 2199. Part D (Multiple Counts) shall be applied as if the involuntary manslaughter of each person had been contained in a separate count of conviction. "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. see Appendix A (Statutory Index). A homicide resulting from driving a means of transportation. "Means of transportation" includes a motor vehicle (including an automobile or a boat) and a mass transportation vehicle.§2A1. November 1. amendment 685). amendment 663). November 1. Commentary Statutory Provisions: 18 U. Historical Note: Effective November 1. amendment 699). convictions for involuntary manslaughter under 18 U.S. "Reckless" includes all.—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. 2007 (see Appendix C.C. 2291. §§ 1112. 2006 (see Appendix C. Conspiracy or Solicitation to Commit Murder (a) Base Offense Level: 33 – 50 – . while under the influence of alcohol or drugs ordinarily should be treated as reckless. For additional statutory provision(s). amendment 637). 2002 (see Appendix C. § 1112.5. 2004 (see Appendix C. November 1. 2332b(a)(1). 2009 (Apply the greater): (A) (B) 18. or similarly dangerous actions. 2003 (see Appendix C. Chapter Three. "Mass transportation" has the meaning given that term in 18 U. November 1.S.C. or nearly all.C. amendment 652).S. §2A1. 1841(a)(2)(C). Amended effective November 1. 1987. Definitions. Application Note: 1.

371. increase by 4 levels.1 (b) Specific Offense Characteristic (1) If the offense involved the offer or the receipt of anything of pecuniary value for undertaking the murder. otherwise. if the object of the offense would have constituted first degree murder. increase by 3 levels. 373. If the offense resulted in an attempted murder or assault with intent to commit murder. * * * * * 2. ASSAULT §2A2. 2009 GUIDELINES MANUAL §2A2. If the offense involved the offer or the receipt of anything of pecuniary value for undertaking the murder. increase by 4 levels. Historical Note: Effective November 1. or 27. increase by 2 levels. apply §2A2. 2004 (see Appendix C. (2) – 51 – .C.S. Attempted Murder (a) Base Offense Level: (1) 33. (2) Commentary Statutory Provisions: 18 U. Assault with Intent to Commit Murder. 1117. (c) Cross References (1) If the offense resulted in the death of a victim. or (C) the degree of injury is between that specified in subdivisions (A) and (B). §§ 351(d). apply §2A1. 1751(d).1 (Assault with Intent to Commit Murder. (2) (b) Specific Offense Characteristics (1) If (A) the victim sustained permanent or life-threatening bodily injury. amendment 663). (B) the victim sustained serious bodily injury. amendment 311).November 1. 1990 (see Appendix C. Amended effective November 1.1 (First Degree Murder).1. Attempted Murder). increase by 4 levels.

"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. 2006 (see Appendix C.2 (Aggravated Assault). amendment 391). 1113. see Appendix A (Statutory Index).—For purposes of this guideline: "First degree murder" means conduct that. Historical Note: Effective November 1.2. 1992(a)(7). If (A) a firearm was discharged. 1991 (see Appendix C. Aggravated Assault (a) (b) Base Offense Level: 14 Specific Offense Characteristics (1) (2) If the assault involved more than minimal planning.1 (Application Instructions). Definitions. §§ 113(a)(1). 1751(c). 1841(a)(2)(C).S. If the victim sustained bodily injury. Upward Departure Provision. an upward departure may be warranted. 2. (B) a dangerous weapon (including a firearm) was otherwise used. amendment 534). November 1. 1987. 2004 (see Appendix C. 1989 (see Appendix C. increase by 3 levels. (C) a dangerous weapon (including a firearm) was brandished or its use was threatened. 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 . November 1. 2009 Commentary Statutory Provisions: 18 U. would constitute first degree murder under 18 U. November 1. 1995 (see Appendix C. 1990 (see Appendix C.C.§2A2. § 1111. §2A2. An attempted manslaughter. Application Notes: 1. 2002 (see Appendix C. amendment 699). if committed within the special maritime and territorial jurisdiction of the United States. increase by 4 levels. increase by 5 levels. is covered under §2A2. amendment 685). 2291. For additional statutory provision(s). amendments 83 and 84). amendment 637). November 1. or assault with intent to commit manslaughter. 1116(a). November 1. increase by 2 levels. Amended effective November 1. 351(c). Background: This section applies to the offenses of assault with intent to commit murder and attempted murder. amendment 663). 2199. November 1. 2007 (see Appendix C.—If the offense created a substantial risk of death or serious bodily injury to more than one person.S.C.1 GUIDELINES M ANUAL November 1. November 1. amendment 311).

(6).—For purposes of subsection (b)(1)." "otherwise used. (4) If the assault was motivated by a payment or offer of money or other thing of value. a car. For example. 114. Definitions. 2340A. 351(e). 2291. or If the degree of injury is between that specified in subdivisions (B) and (C). 2332b(a)(1)." "permanent or life-threatening bodily injury. other than conduct to which §3C1. (3). 112. 1751(e). 2199. 2. (E) However.C. Application of Subsection (b)(1). increase by 2 levels. § 111(b) or § 115. a chair.S." and "serious bodily injury. Application Note 1. 115(a).1 (Application Instructions)." "bodily injury.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). "Dangerous weapon" has the meaning given that term in §1B1.. 1841(a)(2)(C). waiting to commit the offense when no witnesses were – 53 – . (B) serious bodily injury. 1992(a)(7). the cumulative adjustments from application of subdivisions (2) and (3) shall not exceed 10 levels.g.—For purposes of this guideline: "Aggravated assault" means a felonious assault that involved (A) a dangerous weapon with intent to cause bodily injury (i.C." "firearm. §§ 111. see Appendix A (Statutory Index). If the defendant was convicted under 18 U. 113(a)(2). For additional statutory provision(s).. add 6 levels. "More than minimal planning" also exists if significant affirmative steps were taken to conceal the offense. add 4 levels. "more than minimal planning" means more planning than is typical for commission of the offense in a simple form. or an ice pick) if such an instrument is involved in the offense with the intent to commit bodily injury.S. increase by 2 levels. If the offense involved the violation of a court protection order. Application Notes: 1. (b)(1). or (C) an intent to commit another felony. Application Note 1." have the meaning given those terms in §1B1. increase by 2 levels. not merely to frighten) with that weapon. 2009 GUIDELINES MANUAL §2A2. and includes any instrument that is not ordinarily used as a weapon (e.1.November 1.1 (Obstructing or Impeding the Administration of Justice) applies.e. "Brandished. (5) (6) Commentary Statutory Provisions: 18 U.

1990 (see Appendix C. luring the victim to a specific location or wearing a ski mask to prevent identification would constitute more than minimal planning. amendment 699). Minor Assault (a) Base Offense Level: (1) 7. amendment 534). amendments 85 and 86).§2A2. November 1. 2001 (see Appendix C. Consequently. 1989 (see Appendix C. the involvement of a dangerous weapon with intent to cause bodily injury.e. Such offenses occasionally may involve planning or be committed for hire. Attempt to Commit Criminal Sexual Abuse). the court shall apply both the base offense level and subsection (b)(2). November 1. November 1. By contrast.C. amendment 663). Attempted Murder). Assault with intent to commit rape is covered by §2A3. 2006 (see Appendix C. amendment 311). In such a case. This guideline also covers attempted manslaughter and assault with intent to commit manslaughter. November 1. November 1. Application of Subsection (b)(2). 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. amendment 549). November 1. 2009 present would not alone constitute more than minimal planning.2 (Official Victim) in order to address adequately the directive in section 11008(e)(2)(D) of the Act. (2) – 54 – . 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. Historical Note: Effective November 1. §§ 111 and 115. 2002 (see Appendix C. or 4. 3.1 (Criminal Sexual Abuse. or if a dangerous weapon (including a firearm) was possessed and its use was threatened. 1997 (see Appendix C. amendment 614). otherwise.S. amendment 637). 1987. Amended effective November 1.2 (Official Victim) also shall apply. 4.3. Assault with intent to commit murder is covered by §2A2. Public Law 107–273. November 1. i. §2A2. even if application of the base offense level and the weapon enhancement is based on the same conduct. if the offense involved physical contact. Background: This guideline covers felonious assaults that are more serious than minor assaults because of the presence of an aggravating factor.. 1995 (see Appendix C. the structure follows §2A2. The enhancement in subsection (b)(6) is cumulative to the adjustment in §3A1.—If subsection (b)(6) applies. the base offense level and the weapon enhancement in subsection (b)(2) take into account different aspects of the offense. Application of Official Victim Adjustment. serious bodily injury.2 GUIDELINES M ANUAL November 1. Subsection (b)(6) implements the directive to the Commission in subsection 11008(e) of the 21st Century Department of Justice Appropriations Act (the "Act"). November 1. §3A1. 2007 (see Appendix C. or the intent to commit another felony. amendment 685). 2004 (see Appendix C.1.—In a case involving a dangerous weapon with intent to cause bodily injury.1 (Assault with Intent to Commit Murder.

November 1.S. increase by 2 levels. increase by 4 levels. or (B) the offense resulted in substantial bodily injury to an individual under the age of sixteen years. see Appendix A (Statutory Index). apply §2A2. Application Notes: 1. organ. amendment 699). "Substantial bodily injury" means "bodily injury which involves (A) a temporary but substantial disfigurement.1 (Application Instructions). or a felonious assault not covered by §2A2. or mental faculty. §§ 112. 115(b)(1). Historical Note: Effective November 1. "dangerous weapon".—For purposes of this guideline: "Bodily injury". amendment 510)." See 18 U.—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 (Aggravated Assault). Application of Subsection (b)(1). For additional statutory provision(s). 2291. §2A2. 115(a). Amended effective October 15. amendment 663). 1995 (see Appendix C. 2007 (see Appendix C. amendments 87 and 88). or (B) a dangerous weapon – 55 – . 2009 GUIDELINES MANUAL §2A2. or (B) a temporary but substantial loss or impairment of the function of any bodily member.4 (b) Specific Offense Characteristic (1) If (A) the victim sustained bodily injury.C. November 1. 1988 (see Appendix C. 2199. 1989 (see Appendix C. amendment 64). 1751(e). § 113(b)(1). and "firearm" have the meaning given those terms in Application Note 1 of the Commentary to §1B1. 2004 (see Appendix C.C. "Minor assault" means a misdemeanor assault. November 1. Commentary Statutory Provisions: 18 U. Obstructing or Impeding Officers (a) (b) Base Offense Level: 10 Specific Offense Characteristics (1) If (A) the offense involved physical contact. (c) Cross Reference (1) If the conduct constituted aggravated assault.S. November 1. Definitions. November 1. 1987. 2.4.2 (Aggravated Assault). 351(e). Background: Minor assault and battery are covered in this section.

2009 (including a firearm) was possessed and its use was threatened. apply §2A2.2 (Reckless Endangerment During Flight). amendment 679).—The base offense level incorporates the fact that the victim was a governmental officer performing official duties. pursuant to subsection (c).—The base offense level does not assume any significant disruption of governmental functions. November 1.4 GUIDELINES M ANUAL November 1. 2004 (see Appendix C. increase by 2 levels. Amended effective November 1. Application of Certain Chapter Three Adjustments. November 1.1 (Application Instructions).S. November 1. an upward departure may be warranted. amendment 443). * * * * * – 56 – . 2005 (see Appendix C. See §5K2. increase by 3 levels. 1988 (see Appendix C. Definitions. 2237(a)(1). amendment 550). November 1. involve the creation of that risk). amendment 64). (a)(2)(A). 2007 (see Appendix C. amendment 699). the offense level is determined under §2A2. 1992 (see Appendix C. see Appendix A (Statutory Index).§2A2.2 (Aggravated Assault). apply §3C1. but not always. "dangerous weapon". 3056(d). amendments 89 and 90).S. Therefore. (2) (c) If the victim sustained bodily injury. "bodily injury". do not apply §3A1. §§ 111. amendment 663). Historical Note: Effective October 15.2 (Official Victim) unless. 1501. Application Notes: 1. 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.—For purposes of this guideline. If the defendant creates that risk and no higher guideline adjustment is applicable for the conduct creating the risk. Cross Reference (1) If the conduct constituted aggravated assault. 3. 2. Commentary Statutory Provisions: 18 U. Upward Departure Provision.2 (Aggravated Assault). 1502.C. Conversely. 1997 (see Appendix C. and "firearm" have the meaning given those terms in Application Note 1 of the Commentary to §1B1.7 (Disruption of Governmental Function).C. In situations involving such disruption. For additional statutory provision(s). 1989 (see Appendix C. November 1. § 758 for fleeing or evading a law enforcement checkpoint at high speed will often.

November 1.C. increase by 2 levels. Specific Offense Characteristics (1) If the offense involved conduct described in 18 U. §2A3. or (B) the victim had attained the age of twelve years but had not attained the age of sixteen years. or (C) if the degree of injury is between that specified in subdivisions (A) and (B). If the victim was abducted. or coerce a minor to engage in prohibited sexual conduct. increase by 4 levels. to persuade. increase by 2 levels. or (B) a person held in the custody of a correctional facility. 2009 GUIDELINES MANUAL §2A3. or 30. or (B) the use of a computer or an interactive computer service.S. 1987. – 57 – . Amended effective November 1. the offense involved (A) the knowing misrepresentation of a participant’s identity.C. increase by 4 levels. or supervisory control of the defendant. (B) if the victim sustained serious bodily injury. if the defendant was convicted under 18 U. by a minor or a participant.1 (First Degree Murder). § 2241(c). (2) (3) (4) (5) (6) (c) Cross References (1) If a victim was killed under circumstances that would constitute murder under 18 U. amendment 701). increase by 4 levels. § 2241(a) or (b).S. increase by 2 levels. Criminal Sexual Abuse. (A) If the victim sustained permanent or life-threatening bodily injury. increase by 3 levels. 2007 (see Appendix C. If. to engage in prohibited sexual conduct. if the resulting offense level is greater than that determined above. Attempt to Commit Criminal Sexual Abuse (a) Base Offense Level: (1) (2) (b) 38. CRIMINAL SEXUAL ABUSE AND OFFENSES RELATED TO REGISTRATION AS A SEX OFFENDER Historical Note: Effective November 1. increase by 2 levels. apply §2A1. or if.1. induce.C. increase by 4 levels. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States.S. care. otherwise. If the victim was (A) in the custody. If subsection (a)(2) applies and (A) the victim had not attained the age of twelve years.1 3. entice. to facilitate transportation or travel.

transportation. see Appendix A (Statutory Index). 2009 If the offense involved causing.2 (Official Victim). including possession with intent to distribute.S. "Custody or control" and "prison official" have the meaning given those terms in Application Note 4 of the Commentary to §3A1. §§ 2241.1 (Sexually Exploiting a Minor by Production of Sexually Explicit Visual or Printed Material. 2242. § 230(f)(2)). Definitions. which already is taken into account in the base offense level under subsection (a). § 1030(e)(1). § 2256(8). However. (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. production.1 (Application Instructions).2 (Official Victim). Application Notes: 1. and "serious bodily injury" have the meaning given those terms in Application Note 1 of the Commentary to §1B1.S.S. Custodian Permitting Minor to Engage in Sexually Explicit Conduct. "Computer" has the meaning given that term in 18 U. Accordingly.§2A3. if the resulting offense level is greater than that determined above.1 (2) GUIDELINES M ANUAL November 1. for purposes of this guideline. apply §2G2. Advertisement for Minors to Engage in Production).C. or offering or seeking by notice or advertisement. transporting. and advertisement. a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct. related to the transfer of material involving the sexual exploitation of a minor.S.—For purposes of this guideline: "Abducted". "Child pornography" has the meaning given that term in 18 U. "Interactive computer service" has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U. 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. – 58 – . "serious bodily injury" means conduct other than criminal sexual abuse. permitting. distribution includes posting material involving the sexual exploitation of a minor on a website for public viewing. "permanent or life-threatening bodily injury". Commentary Statutory Provisions: 18 U.C. "Distribution" means any act.C.C. For additional statutory provision(s).

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

November 1.8 (Extreme Conduct). amendment 477). would not be a sufficient basis for application of the enhancement. by a minor or a participant. or supervisory control of the minor. to engage in prohibited sexual conduct.— (A) Misrepresentation of Participant’s Identity. or (B) facilitate transportation or travel. an upward departure may be warranted. to engage in prohibited sexual conduct. use of a computer screen name. November 1. entice. 1992 (see Appendix C. 1991 (see Appendix C. or status. or supervisory control of the minor. 1997 (see Appendix C. a minor to engage in sexually explicit conduct for the purpose of producing any visual depiction of such conduct. The misrepresentation to which the enhancement in subsection (b)(6)(A) may apply includes misrepresentation of a participant’s name. as long as the misrepresentation was made with the intent to (A) persuade. Accordingly. occupation.—The enhancement in subsection (b)(6)(A) applies in cases involving the misrepresentation of a participant’s identity to (A) persuade. entice. See §5K2. persuading. (B) Use of a Computer or Interactive Computer Service. Amended effective November 1. § 2256(2).§2A3. amendment 725). 1995 (see Appendix C. 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. November 1. amendment 511). amendment 392).—Subsection (b)(6)(B) provides an enhancement if a computer or an interactive computer service was used to (i) persuade. or (B) facilitate transportation or travel. November 1. 1993 (see Appendix C. November 1. care. amendment 545). without such intent. Application of Subsection (c)(2). amendment 664). 2004 (see Appendix C. 2009 Application of Subsection (b)(6). using. or coerce a minor to engage in prohibited sexual conduct. 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. amendments 91 and 92). Subsection (b)(6)(A) is intended to apply only to misrepresentations made directly to a minor or to a person who exercises custody. November 1. 1987.—If a victim was sexually abused by more than one participant. transporting. November 1. care. Upward Departure Provision. enticing. or coerce a minor to engage in prohibited sexual conduct. November 1. or coerce a minor to engage in prohibited sexual conduct. by a minor or a participant. gender. 2000 (see Appendix C. induce.1 4. November 1. 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. amendment 444). – 60 – . by a minor or a participant. permitting. 1989 (see Appendix C. (B) 6. amendment 615). entice. or (ii) facilitate transportation or travel. coercing. 2003 (see Appendix C. Definition. Accordingly.—The cross reference in subsection (c)(2) is to be construed broadly and includes all instances where the offense involved employing. November 1. 2001 (see Appendix C.—For purposes of subsection (c)(2).C. amendment 701). to engage in prohibited sexual conduct.S. November 1.— (A) In General. age. 2008 (see Appendix C. induce. GUIDELINES M ANUAL November 1. or offering or seeking by notice or advertisement. Historical Note: Effective November 1. inducing. "sexually explicit conduct" has the meaning given that term in 18 U. Accordingly. 5. amendment 661). induce. 2007 (see Appendix C. amendments 592 and 601).

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

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

S. 4. 1995 (see Appendix C. § 2242(1)). or the production of pornography. 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.S.—Subsection (b)(3) provides an enhancement if a computer or an interactive computer service was used to persuade. Amended effective November 1. 2001 (see Appendix C. (B) the victim had attained the age of 12 years but not attained the age of 16 years.C. some degree of undue influence can be presumed because of the substantial difference in age between the participant and the minor.C. amendment 664). Application of Subsection (b)(3). However. or supervisory control of the minor. A four-level enhancement is provided in subsection (b)(1) for a defendant who victimizes a minor under his supervision or care. For example.S. 2004 (see Appendix C. care. 1992 (see Appendix C. Upward Departure Consideration. as specified in 18 U.C. 2009 (see Appendix C. It is assumed that at least a four-year age difference exists between the minor and the defendant.November 1. 1989 (see Appendix C. November 1. regardless of the "consent" of the minor.S. amendment 93). November 1. serious bodily injury. November 1. thus. Attempt to Commit Criminal Sexual Abuse) if the offense involved criminal sexual abuse or attempt to commit criminal sexual abuse. 5. November 1. In such a case. 2000 (see Appendix C. or kidnaping (see 18 U. or kidnaping (see 18 U.C. §2A3. amendment 732). Cross Reference. § 2241 or § 2242.C. amendment 444). if the minor had not attained the age of 12 years. the voluntariness of the minor’s behavior was compromised. amendment 592). 1987.1 shall apply if (A) the victim had not attained the age of 12 years (see 18 U. as defined in 18 U.—There may be cases in which the offense level determined under this guideline substantially understates the seriousness of the offense.— Subsection (c)(1) provides a cross reference to §2A3. and was placed in fear of death. While this section applies to consensual sexual acts prosecuted under 18 U. For example.C. 1991 (see Appendix C. or coerce the minor to engage in prohibited sexual conduct.S. amendment 511). § 2243(a) that would be lawful but for the age of the minor. § 2243(a). amendment 615). 6. 2009 GUIDELINES MANUAL §2A3. § 2243(a).C. A four-level enhancement is provided in subsection (b)(2) for such cases. November 1. Attempt to Commit Criminal Sexual Abuse) will apply. §2A3. an upward departure may be warranted if the defendant committed the criminal sexual act in furtherance of a commercial scheme such as pandering. an upward departure may be warranted. in which a participant took active measure(s) to unduly influence the minor to engage in prohibited sexual conduct and. November 1. § 2241(a).S.S. amendment 392).1 (Criminal Sexual Abuse.(c)). In such cases. the cross reference to §2A3.1 (Criminal Sexual Abuse. or (C) the victim was threatened or placed in fear other than fear of death. entice. induce.3 a rebuttable presumption that subsection (b)(2)(B)(ii) applies. it also applies to cases. transporting persons for the purpose of prostitution. serious bodily injury. prosecuted under 18 U. Criminal Sexual Abuse of a Ward or Attempt to Commit Such Acts (a) (b) Base Offense Level: 14 Specific Offense Characteristics – 63 – . Background: This section applies to offenses involving the criminal sexual abuse of an individual who had not attained the age of 16 years. Historical Note: Effective November 1. § 2241(c)). November 1.3.

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

increase by 2 levels. Inapplicability of §3B1. increase by 2 levels. 1989 (see Appendix C. induce.C. November 1. entice. care. induce. amendment 701). 2009 GUIDELINES MANUAL §2A3. or coerce a minor to engage in prohibited sexual conduct.November 1. If a computer or an interactive computer service was used to persuade. entice.C. or supervisory control of the defendant. If the victim was in the custody. care.—Do not apply §3B1. If the offense involved the knowing misrepresentation of a participant’s identity to persuade. increase by 4 levels. or 12. 1995 (see Appendix C. Abusive Sexual Contact or Attempt to Commit Abusive Sexual Contact (a) Base Offense Level: (1) 20.4 3. 16. 2000 (see Appendix C. November 1. or coerce a minor to engage in prohibited sexual conduct. November 1. but if the resulting offense level is less than 22. increase by 2 levels.—Subsection (b)(2) provides an enhancement if a computer or an interactive computer service was used to persuade. amendment 615). 2007 (see Appendix C. Application of Subsection (b)(2). or supervisory control of the minor. and the victim had attained the age of twelve years but had not attained the age of sixteen years. 2004 (see Appendix C. § 2241(a) or (b). (2) (3) (4) (5) (c) Cross References (1) If the offense involved criminal sexual abuse or attempt to commit – 65 – . increase by 2 levels. Amended effective November 1.S. § 2242. November 1. amendment 664). if the offense involved conduct described in 18 U. 4.S. increase to level 22. (2) (3) (b) Specific Offense Characteristics (1) If the victim had not attained the age of twelve years.4. November 1. If the base offense level is determined under subsection (a)(1) or (2). amendment 94). if the offense involved conduct described in 18 U. amendment 592). or coerce a minor to engage in prohibited sexual conduct. otherwise. Historical Note: Effective November 1. entice. 1987.3 (Abuse of Position of Trust or Use of Special Skill).3. induce. §2A3. 2001 (see Appendix 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. amendment 511).

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

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

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

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

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

subject to a possible 3-level reduction under §2X1. Solicitation.1 applicable to that other offense if such offense guideline includes an adjustment for kidnapping. for example.November 1. Therefore. §§ 115(b)(2). 2. In the case of a conspiracy. in any other case. 2340A.C.S. 2251. for example. (c) Cross Reference (1) If the victim was killed under circumstances that would constitute murder under 18 U. Similarly.1 (Application Instructions)). Application Notes: 1. subsection (b)(7) would reference first degree murder (resulting in an offense level of 43. However.C.S. §2X1. 1751(b). for purposes of this guideline. §§ 2241-2244. Commentary Statutory Provisions: 18 U.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. 4. – 71 – . abduction. and 24212423.1 (First Degree Murder). 1201. if the resulting offense level is greater than that determined above. see Appendix A (Statutory Index). 351(b). or a "firearm" or "dangerous weapon" was "otherwise used" (as defined in the Commentary to §1B1. "serious bodily injury" means conduct other than criminal sexual abuse. 2009 GUIDELINES MANUAL §2A4. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States. or unlawful restraint.1 (Application Instructions). (d). For purposes of this guideline— Definitions of "serious bodily injury" and "permanent or life-threatening bodily injury" are found in the Commentary to §1B1. 3. 1203. or Conspiracy) requires that the court apply any adjustment that can be determined with reasonable certainty.S. the offense referenced under subsection (b)(7) would be the offense of first degree murder. or (B) 4 plus the offense level from the offense guideline applicable to that other offense.1 (Attempt. attempt. which is taken into account in the specific offense characteristic under subsection (b)(5). For additional statutory provision(s). if an offense involved conspiracy to kidnap for the purpose of committing murder. or otherwise takes such conduct into account.C. or solicitation to kidnap. "A dangerous weapon was used" means that a firearm was discharged. apply §2A1. but in no event greater than level 43. "Sexually exploited" includes offenses set forth in 18 U.

S.C. Subsections (a) and (b)(5). and kidnapping for ransom or political demand. see Appendix A (Statutory Index). An enhancement is provided when the offense is committed for ransom (subsection (b)(1)) or involves another federal. Unlawful Restraint). 1997 (see Appendix C. November 1. §§ 876. Abduction. and the deletion of subsection (b)(4)(C).§2A4.C. Commentary Statutory Provisions: 18 U. 2009 Background: Federal kidnapping cases generally encompass three categories of conduct: limited duration kidnapping where the victim is released unharmed. Section 401 of Public Law 101-647 amended 18 U. Amended effective November 1. May 30. 877. Where the guidelines did not already take into account the conduct identified by the Act. or disposed of with knowledge of its criminal origins. apply §2A4. possessed. 1992 (see Appendix C. amendment 637). 2002 (see Appendix C. amendment 96). 1202. The adjustment recognizes the increased suffering involved in lengthy kidnappings and provides an incentive to release the victim. but need not have been convicted. 1987. November 1. 2003 (see Appendix C. § 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. implement the directive to the Commission in section 104 of Public Law 108–21. amendment 445). November 1. Application Note: 1. requiring that ransom money be received. amendment 363). additional specific offense characteristics have been provided. or local offense that results in a greater offense level (subsections (b)(7) and (c)(1)).S. §2A4.C. amendment 650). 1989 (see Appendix C. November 1. Historical Note: Effective November 1.2.1 GUIDELINES M ANUAL November 1. 1991 (see Appendix C. sexual assault).1 (Kidnapping. October 27. effective May 30. amendment 545). § 1202. A "participant" is a person who is criminally responsible for the commission of the offense. – 72 – . 2003 (see Appendix C. November 1. kidnapping that occurs as part of or to facilitate the commission of another offense (often. state. amendment 651). 1993 (see Appendix C. Background: This section specifically includes conduct prohibited by 18 U. Demanding or Receiving Ransom Money (a) (b) Base Offense Level: 23 Cross Reference (1) If the defendant was a participant in the kidnapping offense. 2003. amendment 478).S. For additional statutory provision(s). The guideline contains an adjustment for the length of time that the victim was detained.

§ 46502(a). 1987. (n)). Amended effective November 1. (b) (formerly 49 U. amendment 479). amendment 534). Background: This section covers aircraft piracy both within the special aircraft jurisdiction of the United States. behavior proscribed by 18 U. 49 U. or threat of force or violence. Commentary Statutory Provisions: 49 U. 1987. and aircraft piracy outside that jurisdiction when the defendant is later found in the United States. The presence of a weapon is assumed in the base offense level. * * * * * 5.1.C. 2002 (see Appendix C.1.C. Interference with Dispatch.S.2 The actual demand for ransom under these circumstances is reflected in §2A4.S. or (B) a mass transportation facility or a mass transportation vehicle. Operation. 1995 (see Appendix C. § 46502(a). 1987.S. Historical Note: Effective November 1. 2009 GUIDELINES MANUAL §2A5. amendment 637). Aircraft Piracy or Attempted Aircraft Piracy (a) (b) Base Offense Level: 38 Specific Offense Characteristic (1) If death resulted. or by any other form of intimidation. or Maintenance of Mass Transportation Vehicle (a) Base Offense Level (Apply the greatest): (1) 30. §2A5.S. §2A5. For additional statutory provision(s). 1993 (see Appendix C. or (B) a mass transportation facility or a mass transportation vehicle. § 1472 (i). Seizure of control of an aircraft may be by force or violence. §§ 876-877.November 1.C. – 73 – (2) .C.C. Interference with Flight Crew Member or Flight Attendant. if the offense involved recklessly endangering the safety of: (A) an airport or an aircraft. 18. Amended effective November 1.2. AIR PIRACY AND OFFENSES AGAINST MASS TRANSPORTATION SYSTEMS Historical Note: Effective November 1. Navigation. Amended effective November 1. § 46502(b). Historical Note: Effective November 1. 49 U. increase by 5 levels. This section additionally includes extortionate demands through the use of the United States Postal Service. if the offense involved intentionally endangering the safety of: (A) an airport or an aircraft. see Appendix A (Statutory Index).S.

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

Application Notes: 1.C.3. 2. STALKING. 1988 (see Appendix C.S. Committing Certain Crimes Aboard Aircraft (a) Base Offense Level: The offense level applicable to the underlying offense.C. 1995 (see Appendix C. HOAXES. If (A) the offense involved more than two threats.November 1. an upward departure may be warranted.C. Amended effective November 1.1. THREATENING OR HARASSING COMMUNICATIONS. or (E) that did not involve a threat to injure a person or property. § 223(a)(1)(C).S. Historical Note: Effective October 15. amendment 98). or (B) the defendant is convicted under 18 U. 2009 GUIDELINES MANUAL §2A6. (2) – 75 – . § 46506 of which the defendant is convicted. amendment 686).S. AND DOMESTIC VIOLENCE Historical Note: Effective November 1. False Liens (a) Base Offense Level: (1) (2) 12.1 §2A5. if the defendant is convicted of an offense under 47 U. increase by 2 levels. * * * * * 6.C. § 1472(k)(1)). Amended effective November 1. increase by 6 levels. "Underlying offense" refers to the offense listed in 49 U. November 1. § 1521 and the offense involved more than two false liens or encumbrances. amendment 65). amendment 549). 1989 (see Appendix C.C. §2A6.S. or 6. Commentary Statutory Provision: 49 U. (b) Specific Offense Characteristics (1) If the offense involved any conduct evidencing an intent to carry out such threat. 1997 (see Appendix C. Hoaxes. 2006 (see Appendix C. § 46506 (formerly 49 U. 1987. November 1. amendment 534). Threatening or Harassing Communications. If the conduct intentionally or recklessly endangered the safety of the aircraft or passengers.S. (D).

however. If the offense resulted in (A) substantial disruption of public. or otherwise respond to the offense. decontaminate. and (B) the offense involved a single instance evidencing little or no deliberation. the court shall consider only those prior acts of threatening the victim that have a substantial and direct connection to the offense. .— In determining whether subsections (b)(1). 878(a). 876.C.C. if the resulting offense level is greater than that determined under this guideline. apply §3A1. multiple counts involving making a threatening or harassing communication to the same victim are grouped – 76 – 2. (4). then for purposes of determining whether subsections (b)(1).C. decrease by 4 levels. § 46507. increase by 4 levels.§2A6. (2). 2291(e).S. 2332b(a)(2). § 115.S. § 223(a)(1)(C)-(E). 47 U. Commentary Statutory Provisions: 18 U. Part D (Multiple Counts). (B) made a public threatening communication. (C). see Appendix A (Statutory Index). and (D).—For purposes of Chapter Three. §§ 32(c). or business functions or services. governmental. Application Notes: 1. under the facts of the case taken as a whole. apply §2M6. (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. 871.S.C. and (b)(3) apply. or (B) a substantial expenditure of funds to clean up. 1521. Applicability of Chapter Three Adjustments. conduct that occurred prior to the offense must be substantially and directly connected to the offense. 1992(a)(9). (b)(2). § 115. as defined in 18 U. For example.S. 879. § 1521. Scope of Conduct to Be Considered. If (A) subsection (a)(2) and subdivisions (1). 2291(a)(8).—If the defendant is convicted under 18 U. 2009 If the offense involved the violation of a court protection order. 49 U. 35(b). and (5) do not apply. For additional statutory provision(s). 1038.S.C.S.1 (Weapons of Mass Destruction).C. increase by 2 levels. (b)(2). the court shall consider both conduct that occurred prior to the offense and conduct that occurred during the offense. and (b)(3) apply.S. 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). (3). Grouping. 877.1 (3) GUIDELINES M ANUAL November 1. increase by 2 levels.2 (Official Victim).C. § 2332a(c)(2)(B). (a)(10). 2292. 3. If the defendant (A) is convicted under 18 U. and (C) knew or should have known that the public threatening communication created a substantial risk of inciting others to violate 18 U.

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

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

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

if (A) the defendant was convicted of an offense referenced to this guideline.000 More than $10.000. 2009 PART B . Larceny.BASIC ECONOMIC OFFENSES 1. embezzlement. amendment 617).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 . AND OFFENSES INVOLVING FRAUD OR DECEIT Introductory Commentary These sections address basic forms of property offenses: theft.000 or less More than $5. These guidelines apply to offenses prosecuted under a wide variety of federal statutes. EMBEZZLEMENT. and (B) that offense of conviction has a statutory maximum term of imprisonment of 20 years or more.000 More than $1. 1989 (see Appendix C. Offenses Involving Stolen Property.000 More than $30. Part K (Offenses Involving Public Safety)). fraud.500.§2B1. November 1.1 GUIDELINES M ANUAL November 1. Fraud and Deceit. (2) (b) Specific Offense Characteristics (1) If the loss exceeded $5.1. PROPERTY DESTRUCTION. Historical Note: Effective November 1.000 More than $70. amendment 303). transactions in stolen goods. 1987. insider trading.000 More than $400. otherwise. counterfeiting (other than offenses involving altered or counterfeit bearer obligations of the United States). and simple property damage or destruction. and Other Forms of Theft. increase the offense level as follows: Loss (Apply the Greatest) (A) (B) (C) (D) (E) (F) (G) (H) (I) (J) $5. 2001 (see Appendix C.000 More than $120. RECEIPT OF STOLEN PROPERTY. Property Damage or Destruction. Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States (a) Base Offense Level: (1) 7. §2B1.000 More than $2. Forgery. THEFT. (Arson is dealt with separately in Chapter Two.000.000 More than $200. Amended effective November 1. Embezzlement. forgery. as well as offenses that arise under the Assimilative Crimes Act. or 6.

If the offense involved (A) a misrepresentation that the defendant was acting on behalf of a charitable. destruction of. foreign instrumentality.000 More than $20. and the defendant was a person in the business of receiving and selling stolen property. (B) (C) (3) If the offense involved a theft from the person of another. § 1037. providing. or trafficking in. increase by 2 levels. damage to. and (B) the offense involved obtaining electronic mail addresses through improper means. religious. If the offense involved receiving stolen property. or (D) a misrepresentation to a consumer in connection with obtaining.000 More than $50.November 1.000 More than $100. increase by 2 levels.000 More than $400. (K) (L) (M) (N) (O) (P) (2) More than $7. increase by 2 levels. or participated in relocating. or involved 250 or more victims. or a government agency. increase by 2 levels. decree.000. increase by 6 levels. If the resulting offense level is less than level 10. increase by 2 levels. increase by 4 levels.000 More than $200. or (ii) was committed through mass-marketing. If (A) the defendant relocated. or furnishing financial assistance for an institution of higher education. If the offense involved theft of. increase to level 10. educational.000 (Apply the greatest) If the offense— (A) (i) involved 10 or more victims. If (A) the defendant was convicted of an offense under 18 U. (C) a violation of any prior.000.C. injunction. property from a national cemetery or veterans’ memorial.000. If the offense involved misappropriation of a trade secret and the defendant knew or intended that the offense would benefit a foreign government. specific judicial or administrative order. a fraudulent scheme to another jurisdiction to evade law enforcement or regulatory – 81 – (4) (5) (6) (7) (8) (9) .000. (B) a misrepresentation or other fraudulent action during the course of a bankruptcy proceeding. increase by 2 levels.000.1 add 20 add 22 add 24 add 26 add 28 add 30. or process not addressed elsewhere in the guidelines. or foreign agent.S. or political organization. increase by 2 levels. 2009 GUIDELINES MANUAL §2B1.000. involved 50 or more victims.

(I) was a publicly traded company. If the resulting offense level is less than level 12. If the resulting offense level is less than level 12. increase by 2 levels. 2009 officials. except as provided in subdivision (D). increase by 2 levels. or (C) the offense otherwise involved sophisticated means. increase to level 12.C. increase by 2 levels. increase by 2 levels. another means of identification. (ii) substantially endangered the solvency or financial security of an organization that. at any time during the offense. If the resulting offense level is less than level 14. (Apply the greater) If— (A) the defendant derived more than $1. increase by 4 levels.000 or more employees. If the resulting offense level is less than level 12. increase to level 14. increase by 2 levels. (B) a substantial part of a fraudulent scheme was committed from outside the United States. increase to level 24.1 GUIDELINES M ANUAL November 1.000 in gross receipts from one or more financial institutions as a result of the offense. (B) the production or trafficking of any (i) unauthorized access device or counterfeit access device. or (ii) authentication feature. or (C)(i) the unauthorized transfer or use of any means of identification unlawfully to produce or obtain any other means of identification. or (ii) the possession of 5 or more means of identification that unlawfully were produced from. If the offense involved (A) the conscious or reckless risk of death or serious bodily injury. or (ii) authentication feature. or the offense (i) substantially jeopardized the safety and soundness of a financial institution. The cumulative adjustments from application of both subsections (b)(2) and (b)(14)(B) shall not exceed 8 levels. – 82 – (11) (12) (13) (14) (B) (C) (D) . increase to level 12.000. or (B) goods or chattels that are part of a cargo shipment. If the offense involved an organized scheme to steal or to receive stolen (A) vehicles or vehicle parts. If the resulting offense level determined under subdivision (A) or (B) is less than level 24. § 1040. or (B) possession of a dangerous weapon (including a firearm) in connection with the offense. or (II) had 1. increase by 2 levels. (10) If the offense involved (A) the possession or use of any (i) devicemaking equipment.S. increase to level 14. increase to level 12. If the resulting offense level is less than level 14.§2B1. or obtained by the use of. If the offense involved conduct described in 18 U. or (iii) substantially endangered the solvency or financial security of 100 or more victims.

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

1031. 664. or Receipt of Cultural Heritage Resources). or Transportation of Firearms or Ammunition. § 1011. (B) the defendant was convicted under a statute proscribing false. if the resulting offense level is greater than that determined above. or § 1014. Prohibited Transactions Involving Firearms or Ammunition). 6o. – 84 – . 77e. 657. 6821. § 20. and (C) the conduct set forth in the count of conviction establishes an offense specifically covered by another guideline in Chapter Two (Offense Conduct). 6c. § 78c(a)(11)).S.g. § 1007. If the offense involved a cultural heritage resource. Prohibited Transactions Involving Explosive Materials).C. 1341-1344. 2312-2317. Unlawful Sale.5 (Theft of. or Receipt of Cultural Heritage Resources). 77x. 1037. 30170. 1992(a)(1). see Appendix A (Statutory Index). Purchase. 18 U. (2) If the offense involved arson. if the resulting offense level is greater than that determined above. is involved). § 1006.S. or § 1343). 49 U.S. 553(a)(1).§2B1. trust company. §§ 38. § 1341.S.S. Transportation.5 (Theft of. 29 U. 225.S. 1363. (3) (4) Commentary Statutory Provisions: 7 U. Property Damage by Use of Explosives).1 (Unlawful Receipt. 19 U. Exchange. 1001-1008.C. Exchange. apply that other guideline. § 657. 662. 1361. If (A) neither subdivision (1) nor (2) of this subsection applies. 18 U. Definitions. Purchase. or fraudulent statements or representations generally (e. including destruction of mail. 2009 Materials. 2113(b).S. 80b-6. § 656.C. 2282B.. Unlawful Sale. 285-289. 13. apply §2K1. 78ff. 510. 2291. §§ 14915. 500. or §2K2. 6b. Possession. Damage to. 77q. 1030(a)(4)-(5). 15 U. 23. 1010-1014.S. 1708. 1831. as appropriate. "Financial institution" includes any institution described in 18 U. 1644. 1026. Cultural Heritage Resources. or Destruction of.C. 1028.C. 641. 471-473.C. 60123(b). §§ 6.1 GUIDELINES M ANUAL November 1. 1029. § 501(c). 46317(a). Damage to. § 1342. 659. 1702. 78j. § 1005. credit union.C. Application Notes: 1. 656. 42 U. 1040.4 (Arson. 1348.C. § 1001. fictitious. 1016-1022. or Destruction of.C.—For purposes of this guideline: "Cultural heritage resource" has the meaning given that term in Application Note 1 of the Commentary to §2B1. 1350.S. Cultural Heritage Resources. § 2401f. For additional statutory provision(s). 6h. 1025. any state or foreign bank. 2701.C. 1369.S. Transportation. or property damage by use of explosives. 2282A. 2332b(a)(1). 1832. §§ 50. apply §2B1. "Equity securities" has the meaning given that term in section 3(a)(11) of the Securities Exchange Act of 1934 (15 U. (a)(5). 1703 (if vandalism or malicious mischief.

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

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

as appropriate and practicable under the circumstances. In the case of proprietary information (e.S. the cost of developing that information or the reduction in the value of that information that resulted from the offense.g.—In the case of a product substitution offense. Offenses Under 18 U.C. reasonably foreseeable pecuniary harm includes the reasonably foreseeable administrative costs to the government and other participants of repeating or correcting the procurement action affected. or. the reasonably foreseeable pecuniary harm includes the reasonably foreseeable costs of making substitute transactions and handling or disposing of the product delivered. and restoring the data. and any revenue lost. Procurement Fraud Cases. § 1030. conducting a damage assessment. including the cost of responding to an offense. the cost to the victim of replacing that property. For this reason.C. or destroyed. or other damages incurred because of interruption of service.S. such as a fraud affecting a defense contract award. § 1030.S. See 18 U. 2009 GUIDELINES MANUAL §2B1.—In the case of an offense under 18 U. factors such as the following: (i) The fair market value of the property unlawfully taken.—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. and the reasonably foreseeable costs of rectifying the actual or potential disruption to the victim’s business operations caused by the product substitution. copied. system. the court’s loss determination is entitled to appropriate deference.—The court need only make a reasonable estimate of the loss. regardless of whether such pecuniary harm was reasonably foreseeable: any reasonable cost to any victim. if the fair market value is impracticable to determine or inadequately measures the harm.. § 3742(e) and (f).November 1. cost incurred. trade secrets). Estimation of Loss. (C) (ii) (iii) (iv) – 87 – . actual loss includes the following pecuniary harm. or information to its condition prior to the offense. The approximate number of victims multiplied by the average loss to each victim. The estimate of the loss shall be based on available information.C. The sentencing judge is in a unique position to assess the evidence and estimate the loss based upon that evidence. (II) (III) (B) Gain. taking into account.—In the case of a procurement fraud. plus any increased costs to procure the product or service involved that was reasonably foreseeable.1 (I) Product Substitution Cases. or of retrofitting the product so that it can be used for its intended purpose. The cost of repairs to damaged property. program.

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

S. "Mass-marketing" includes. (II) goods were falsely represented as approved by a governmental regulatory agency. loss shall include the amount paid for the property.—In a case involving a Davis-Bacon Act violation (i. 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. § 1001).5..C. or misrepresented.C. such as a Ponzi scheme.—In a case involving controlled substances. Certain Other Unlawful Misrepresentation Schemes. loss is $50.C. or was obtained by fraud. § 1037. the defendant shall receive at least a two-level enhancement under subsection (b)(2) and may. depending on the facts of the case. a telemarketing campaign that solicits a large number of individuals to purchase fraudulent life insurance policies. mail.—In a case involving a cultural heritage resource. Ponzi and Other Fraudulent Investment Schemes. shall be considered to have been committed through mass-marketing.—For purposes of subsection (b)(2). or campaign that is conducted through solicitation by telephone. (iv) (v) (vi) (vii) 4.November 1. § 1037. promotion. or other means to induce a large number of persons to (i) purchase goods or services. Applicability to Transmission of Multiple Commercial Electronic Mail Messages. (iii) Davis-Bacon Act Violations. Value of Controlled Substances. 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. (B) – 89 – . receive a greater enhancement under such subsection.S. or (iii) invest for financial profit. the value of the benefits shall be considered to be not less than the difference between the legally required wages and actual wages paid. or the offense involved conduct described in.C. § 1037. "mass-marketing" means a plan. rendered. Accordingly.S.—In a case involving a fraudulent investment scheme. § 3142. 18 U. the Internet. program. if the defendant was convicted under. a violation of 40 U. criminally prosecuted under 18 U. 2009 GUIDELINES MANUAL §2B1.e. or (III) goods for which regulatory approval by a government agency was required but not obtained.e.S. or any other offense involving conduct described in 18 U.. loss is the estimated street value of the controlled substances.—For purposes of subsection (b)(2).— (A) Definition. for example. the gain to an individual investor in the scheme shall not be used to offset the loss to another individual investor in the scheme). services or goods transferred. with no credit provided for the value of those items or services.C. an offense under 18 U. Application of Subsection (b)(2). (ii) participate in a contest or sweepstakes.—In a case involving a scheme in which (I) services were fraudulently rendered to the victim by persons falsely posing as licensed professionals.1 intended recipient of food stamps having a value of $100 but fraudulently received food stamps having a value of $150.S. Value of Cultural Heritage Resources.

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

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

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

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

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

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

even if the officer is convicted only of wire fraud. § 1a(20)). 2009 (ii) includes the rules. "Introducing broker" has the meaning given that term in section 1a(23) of the Commodity Exchange Act (7 U. § 1a(5)). "Registered broker or dealer" has the meaning given that term in section 3(a)(48) of the Securities Exchange Act of 1934 (15 U. "Securities law" (i) means 18 U. § 78c(a)(47)).S. § 1a(6)).S. (B) In General. §§ 1348.S. do not apply §3B1. regulations. "Commodity trading advisor" has the meaning given that term in section 1a(6) of the Commodity Exchange Act (7 U. Nonapplicability of §3B1.S. and the provisions of law referred to in section 3(a)(47) of the Securities Exchange Act of 1934 (15 U.S. § 80b-2(a)(11)). For example. offenses involving fraudulent statements are prosecuted under 18 U.C. 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. Sometimes.C. and orders issued by the Commodity Futures Trading Commission. 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. or a similarly general statute.—If subsection (b)(17) applies.S.C.S.S.C. § 78c(a)(18)). "Futures commission merchant" has the meaning given that term in section 1a(20) of the Commodity Exchange Act (7 U.1 GUIDELINES M ANUAL November 1.S. "Investment adviser" has the meaning given that term in section 202(a)(11) of the Investment Advisers Act of 1940 (15 U.§2B1.S.C.S.3 (Abuse of Position of Trust or Use of Special Skill). § 80b-2(a)(17)). § 1001.3. Cross Reference in Subsection (c)(3).C. and (ii) includes the rules. "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. "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. 1350. – 96 – .C. "Commodity pool operator" has the meaning given that term in section 1a(5) of the Commodity Exchange Act (7 U. § 78c(a)(48)). and the count of conviction establishes an offense involving fraudulent conduct that is more aptly covered by another guideline. regulations.C. and orders issued by the Securities and Exchange Commission pursuant to the provisions of law referred to in such section.C.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.—A conviction under a securities law or commodities law is not required in order for subsection (b)(17) to apply. § 1a(23)). (C) 15.

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

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

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. Therefore. the scope of such activity is substantial.1 Background: This guideline covers offenses involving theft. forgery. 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. Accordingly.November 1. a single pattern of offense conduct usually can be prosecuted under several code sections. 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. most fraud statutes cover a broad range of conduct with extreme variation in severity. Diplomatic processes often must be used to secure testimony and evidence beyond the jurisdiction of United States courts. 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. The specific offense characteristics and cross references contained in this guideline are designed with these considerations in mind. receives an enhanced sentence because of the increased risk of physical injury. state. and counterfeiting (other than offenses involving altered or counterfeit bearer obligations of the United States). such crimes are robberies and are covered under §2B3. the specific offense characteristic of "organized scheme" is used as an alternative to "loss" in setting a minimum offense level. as a result of which the offense of conviction may be somewhat arbitrary. rather. along with other relevant factors under the guidelines.1 (Robbery). In a similar vein. Consequently. The Commission has determined that. a minimum offense level of level 12 is provided for these offenses. or local administrative agencies. 2009 GUIDELINES MANUAL §2B1. the sentences of defendants convicted of federal offenses should reflect the nature and magnitude of the loss caused or intended by their crimes. such as pickpocketing or non-forcible purse-snatching. Because federal fraud statutes often are broadly written. – 99 – . defendants who exploit victims’ charitable impulses or trust in government create particular social harm. This guideline does not include an enhancement for thefts from the person by means of force or fear. These offenses are difficult to detect and require costly investigations and prosecutions. fraud. 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. 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. Typically. Taking advantage of a victim’s selfinterest does not mitigate the seriousness of fraudulent conduct. Furthermore. stolen property. Theft from the person of another. ordinarily. A minimum offense level of level 14 is provided for offenses involving an organized scheme to steal vehicles or vehicle parts. property damage or destruction.

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

1998 (see Appendix C. amendment 9). For additional statutory provision(s). Amended effective June 15. amendment 647). Transporting. 1987. November 1.3 (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. amendment 551). [Deleted] Historical Note: Section 2B1. 1987. November 1. 1990 (see Appendix C. 2009 (see Appendix C. 2000 (see Appendix C. amended effective June 15.1 effective November 1. 1997 (see Appendix C. amendments 699. and 646). 1997 (see Appendix C. November 1.November 1. amendments 665.S. 317. §2B1. see Appendix A (Statutory Index). amendment 617). § 78j and 17 C. Examples might include a corporate president or an attorney who misused information – 101 – .000. Property Destruction. amendment 481). 733. November 1. 1990 (see Appendix C.10b-5. was deleted by consolidation with §2B1. February 6. amendment 617). amendments 312. and November 1. and 702). 1988 (see Appendix C. 2005 (see Appendix C. 2009 GUIDELINES MANUAL §2B1. § 240. November 1. 2003 (see Appendix C. 638. 2002 (see Appendix C. amendment 7). and 674). amended effective January 15. 1990 (see Appendix C. November 1.3 (Property Damage or Destruction). November 1. Insider Trading (a) (b) Base Offense Level: 8 Specific Offense Characteristic (1) If the gain resulting from the offense exceeded $5. [Deleted] Historical Note: Section 2B1. amendment 576). 2004 (see Appendix C. November 1. 1989 (see Appendix C. amendment 714). November 1. 1993 (see Appendix C. amendments 653. was deleted by consolidation with §2B1. Application Note: 1. effective November 1. 1991 (see Appendix C. amendments 312 and 313).3. 666. 1987. amendments 726. June 15. amendments 481 and 482). January 25. Transferring. and 737). §2B1. November 1.4. amendments 102-104).1 effective November 1.C. national public health or safety. 2006 (see Appendix C. amendments 312 and 361). Commentary Statutory Provisions: 15 U. 1988 (see Appendix C. 2001 (see Appendix C. 700. 654. November 1. amendments 364 and 393). Historical Note: Effective November 1.3. 2003 (see Appendix C. 2008 (see Appendix C. amendment 10). Application of Subsection of §3B1.2 (Receiving. November 1. effective November 1. November 1. 1998 (see Appendix C. Transmitting. amendment 8). and Fraud) corresponding to that amount. November 1. amendments 685 and 696). national economic security. 1988 (see Appendix C. increase by the number of levels from the table in §2B1.R. and 361). 1988 (see Appendix C.4 have on national security. and 661). or Possessing Stolen Property).F. November 1. November 1. November 1. amendments 637. amendment 596). 2007 (see Appendix C.2. November 1. 1995 (see Appendix C. amendment 551). November 1. amendment 576). November 1. 1993 (see Appendix C. November 1. 2008 (see Appendix C. amendment 679). amendment 512). 655. amendments 719 and 725). amendments 99-101 and 303).1 (Theft. or a combination of any of these matters. §2B1. 2001 (see Appendix C. 1989 (see Appendix C.—Section 3B1.

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

299. explosive material. §§ 541-546. 1369.C.C. § 1002(c)). 296. 2232. §§ 470ee. 1168. An archaeological resource. (c) Cross Reference (1) If the offense involved arson. 641. A commemorative work.C.F.F. 18 U.S. 554.F. § 668(a)(2). or property damage by the use of any explosive. 707(b). 2314-2315.C. 2009 GUIDELINES MANUAL §2B1. 2601(7). the following: – 103 – . Value of the Cultural Heritage Resource Under Subsection (b)(1). as defined in 16 U. (A) General Rule.4 (Arson.C. 36 C. Designated ethnological material. A historic resource. 1170.5 (6) If a dangerous weapon was brandished or its use was threatened.C.F. § 10. as defined in section 2(3) of the Native American Graves Protection and Repatriation Act. pt. pt. and (B) includes any national monument or national memorial. 1152-1153.S.C.R. 666. as defined in 16 U.F.November 1. 668(a). A cultural item.F.—For purposes of this guideline. increase to level 14. Commentary Statutory Provisions: 16 U. pt. as described in 19 U.R. and 2604.S.S. § 470w(5). § 470w(5) (see also section 16(l) of 36 C.S.R. Property Damage by Use of Explosives). 25 U. pt. 661-662.—For purposes of subsection (b)(1).2(d)). as defined in 16 U. pt. increase by 2 levels. 18 C.R.C. § 470bb(1) (see also section 3(a) of 43 C. 1312).C.R. 32 C.S. 800). "cultural heritage resource" means any of the following: (A) A historic property. If the resulting offense level is less than level 14. as defined in 18 U.R.—This application note applies to the determination of the value of the cultural heritage resource under subsection (b)(1). or destructive device.S.S. § 3001(3) (see also 43 C. An object of cultural heritage. (B) (C) (D) (E) (F) (G) 2. §§ 2601(2)(ii). "Cultural Heritage Resource" Defined. apply §2K1. 1163. 1361. the value of the cultural heritage resource shall include.S. as applicable to the particular resource involved. if the resulting offense level is greater than that determined above. Application Notes: 1. "Commemorative work" (A) has the meaning given that term in section 2(c) of Public Law 99–652 (40 U. 7. 668.

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

2(d)(4)).S.1 (Theft. § 431).S. "Funerary object" means an object that. § 2601(6). § 1c(a). § 1433. with or near human remains. 10.—For purposes of subsection (b)(3): (A) "Cultural patrimony" has the meaning given that term in 25 U. and Fraud).S.S. § 3001(3)(C) (see also 43 C.S.R. §§ 2601(2) and 2604).S.C. "Cultural property" has the meaning given that term in 19 U.C.C. and Cultural Organization in accordance with the Convention Concerning the Protection of the World Cultural and Natural Heritage.2(d)(3)).C. was placed intentionally. "World Heritage List" means the World Heritage List maintained by the World Heritage Committee of the United Nations Educational.S. § 470a(a)(1)(B).S. 2009 GUIDELINES MANUAL §2B1. at the time of death or later.R. such as hair made into ropes or nets. Enhancement in Subsection (b)(3). § 10. "Human remains" (i) means the physical remains of the body of a human.F.C.C. (B) (C) (D) (E) (F) (G) – 105 – .C. "Sacred object" has the meaning given that term in 25 U. "National park system" has the meaning given that term in 16 U.F. "National Historic Landmark" means a property designated as such pursuant to 16 U. 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. Property Destruction. § 2095(3). "Pre-Columbian monumental or architectural sculpture or mural" has the meaning given that term in 19 U.S. § 3001(3)(D) (see also 43 C. "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. as a part of the death rite or ceremony of a culture.C. § 2601(7) (see also 19 U.5 (B) "National cemetery" and "veterans’ memorial" have the meaning given those terms in Application Note 1 of the Commentary to §2B1.November 1. "Designated archaeological or ethnological material" means archaeological or ethnological material described in 19 U.C. Scientific. (C) (D) (E) (F) (G) 4.S. "National marine sanctuary" means a national marine sanctuary designated as such by the Secretary of Commerce pursuant to 16 U.

whether monetary or in goods or services.1 (Application Instructions). Computation of Criminal History Points. Dangerous Weapons Enhancement Under Subsection (b)(6). offenses committed for pecuniary gain include both monetary and barter transactions. 9.—The acquisition of cultural heritage resources for display to the public. Multiple counts involving cultural heritage offenses covered by this guideline and offenses covered by other guidelines are not to be grouped under §3D1. Therefore.5 5.2(d). "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.§2B1. Upward Departure Provision.3 (Relevant Conduct)).— (A) "For Pecuniary Gain". Part D (Multiple Counts). In such cases. the offense involved theft of. GUIDELINES M ANUAL November 1. "brandished" and "dangerous weapon" have the meaning given those terms in Application Note 1 of the Commentary to §1B1. Commercial Purpose. a private non-profit organization. or (B) the offense 8. an upward departure may be warranted if (A) in addition to cultural heritage resources..—There may be cases in which the offense level determined under this guideline substantially understates the seriousness of the offense. Part A (Criminal History). – 106 – . For example. damage to.—For purposes of subsection (b)(6). that did not occur during the course of the instant offense of conviction and all relevant conduct under §1B1. 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). including a governmental entity. as well as activities designed to increase gross revenue. shall be considered to involve a "commercial purpose" for purposes of subsection (b)(4). or a private forprofit organization. "for pecuniary gain" means for receipt of. (B) 6.— (A) Definition. anything of value.2 (Groups of Closely Related Counts). whether for a fee or donation and whether by an individual or an organization. 2009 Pecuniary Gain and Commercial Purpose Enhancement Under Subsection (b)(4). or destruction of.—For purposes of subsection (b)(5).—For purposes of subsection (b)(4).e. an upward departure may be warranted. multiple counts involving cultural heritage offenses covered by this guideline are grouped together under subsection (d) of §3D1.—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. or in anticipation of receipt of. 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. Multiple Counts. Pattern of Misconduct Enhancement Under Subsection (b)(5).—For purposes of Chapter Three. (B) 7.

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

500 More than $10.6 GUIDELINES M ANUAL November 1. amendment 677).000 More than $1. destructive device. increase by 2 levels. if a structure other than a residence. If a dangerous weapon (including a firearm) was possessed. If a firearm. increase the offense level as follows: Loss (Apply the Greatest) (A) (B) (C) (D) (E) (F) (G) (H) (I) (3) $2. or if the taking of such item was an object of the offense. * * * * * 2. (4) Commentary – 108 – .000 More than $5.000 Increase in Level no increase add 1 add 2 add 3 add 4 add 5 add 6 add 7 add 8. Burglary of a Residence or a Structure Other than a Residence (a) Base Offense Level: (1) (2) (b) 17. 2009 guideline. increase by 2 levels.000 More than $50.2. See §§3D1. Specific Offense Characteristics (1) (2) If the offense involved more than minimal planning.500.500 or less More than $2.000.000 More than $250. increase by 1 level.500.500. Such offenses are excluded from application of those chapters because the guideline sentence for each offense is determined only by the relevant statute. 2005 (see Appendix C.1 (Procedure for Determining Offense Level on Multiple Counts) and 5G1. or 12.000 More than $800. BURGLARY AND TRESPASS §2B2.§2B1. or controlled substance was taken.1.000 More than $2. if a residence. If the loss exceeded $2. Historical Note: Effective November 1.

3 Statutory Provisions: 18 U. checking the area to make sure no witnesses were present would not alone constitute more than minimal planning. amendment 617). (F) at – 109 – . 1988 (see Appendix C. (D) in a secure area of an airport or a seaport. 1989 (see Appendix C. Trespass (a) (b) Base Offense Level: 4 Specific Offense Characteristics (1) If the trespass occurred (A) at a secure government facility. (C) on a vessel or aircraft of the United States. 2118(b)." "destructive device. obtaining building plans to plot a particular course of entry.S.—"More than minimal planning" means more planning than is typical for commission of the offense in a simple form.1 (Application Instructions).C. Subsection (b)(4) does not apply to possession of a dangerous weapon (including a firearm) that was stolen during the course of the offense. other than conduct to which §3C1. 2009 GUIDELINES MANUAL §2B2. (B) at a nuclear energy facility. More than Minimal Planning. For additional statutory provision(s). 1987. Weapon possession. amendments 315 and 361). 1993 (see Appendix C. Weapon use would be a ground for upward departure.1 effective November 1. By contrast. Application Notes: 1. "More than minimal planning" shall be considered to be present in any case involving repeated acts over a period of time. or destroyed. §§ 1153. November 1. amendment 107). amendment 481). 1993 (see Appendix C. 2113(a). [Deleted] Historical Note: Section 2B2. amendment 13). Historical Note: Effective November 1. amendment 11). 1988 (see Appendix C. unless it is clear that each instance was purely opportune. would constitute more than minimal planning. or disabling an alarm system. damaged. 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. 4.2 (Burglary of Other Structures). is a specific offense characteristic because use of a weapon (including to threaten) ordinarily would make the offense robbery. "More than minimal planning" also exists if significant affirmative steps were taken to conceal the offense.1 (Obstructing or Impeding the Administration of Justice) applies. For example. 2117. amendment 12). 2. amendment 481). November 1. November 1. Amended effective January 15. 1989 (see Appendix C. November 1. 2115. "Loss" means the value of the property taken. 1990 (see Appendix C.3. effective November 1. see Appendix A (Statutory Index). 3. but not use. November 1. amended effective June 15. 1990 (see Appendix C. §2B2. §2B2. "Firearm. June 15." and "dangerous weapon" are defined in the Commentary to §1B1. and November 1. 1988 (see Appendix C.2. 2001 (see Appendix C. amendments 105 and 106).November 1. 1987. was deleted by consolidation with §2B2. (E) at a residence. amendments 315 and 361).

§2B2. United States Code. – 110 – . increase by the number of levels from the table in §2B1. § 7270b. 2199.1 (Attempt.000. § 2413. or Conspiracy) in respect to that felony offense. and delivery systems. or local) punishable by imprisonment for a term exceeding one year. 2009 Arlington National Cemetery or a cemetery under the control of the National Cemetery Administration. 42 U. and rescue services). transportation systems and services (including highways.S. (2) If a dangerous weapon (including a firearm) was possessed. telecommunications networks. whether or not a criminal charge was brought or a conviction was obtained. increase by 2 levels. or (G) on a computer system used (i) to maintain or operate a critical infrastructure. §§ 1030(a)(3). state.000. financing and banking systems. public health or safety.1 (Application Instructions). increase by 2 levels. police. and airports). mass transit. electrical power delivery systems. and government operations that provide essential services to the public. emergency services (including medical. "Firearm" and "dangerous weapon" are defined in the Commentary to §1B1. (3) (c) Cross Reference (1) If the offense was committed with the intent to commit a felony offense. Examples of critical infrastructures include gas and oil production.1 (Theft. 38 U. or (ii) exceeded $5. "Critical infrastructure" means systems and assets vital to national defense. national security. fire. Commentary Statutory Provisions: 18 U. A critical infrastructure may be publicly or privately owned. Solicitation.000 but did not exceed $5. water supply systems.S.3 GUIDELINES M ANUAL November 1. national defense. Definitions. or (ii) by or for a government entity in furtherance of the administration of justice. if the resulting offense level is greater than that determined above. Property Destruction.C. storage.—For purposes of this guideline: "Airport" has the meaning given that term in section 47102 of title 49. Application Notes: 1. increase by 1 level. apply §2X1.C. If (A) the offense involved invasion of a protected computer. airlines. or national security. "Felony offense" means any offense (federal. see Appendix A (Statutory Index).S. and Fraud) corresponding to that amount. economic security. 1036. or any combination of those matters. and (B) the loss resulting from the invasion (i) exceeded $2.C. For additional statutory provision(s).

AND BLACKMAIL §2B3. amendment 654). an enhancement is provided for trespass at a residence. (D) if a dangerous weapon was otherwise used. Property Destruction. (B) if a firearm was otherwise used. 1987. Amended effective November 1. 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. increase by 2 levels. increase by 3 levels. "Seaport" has the meaning given that term in 18 U. or if the taking of such property was an object of the offense. and Fraud). amendments 108 and 109). 2003 (see Appendix C. increase by 5 levels. 1997 (see Appendix C. ROBBERY. § 1030(e)(9). Valuation of loss is discussed in the Commentary to §2B1. 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. 2007 (see Appendix C.November 1. 1989 (see Appendix C. § 1030(e)(2)(A) or (B). 2001 (see Appendix C. increase by 4 levels. increase by 7 levels.C. amendment 637).S. November 1.S. or (F) if a threat of death was made.1 (Theft. November 1. (C) if a firearm was brandished or possessed. "Protected computer" means a computer described in 18 U. amendment 551). Background: Most trespasses punishable under federal law involve federal lands or property. (A) If a firearm was discharged. increase by 2 levels. § 26. November 1. 2.C. * * * * * 3. EXTORTION. increase by 6 levels. (E) if a dangerous weapon was brandished or possessed.1 "Government entity" has the meaning given that term in 18 U. amendments 699 and 703). 2009 GUIDELINES MANUAL §2B3. November 1.S.1. Historical Note: Effective November 1.C. Additionally. amendment 617). 2002 (see Appendix C. 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 . If any victim sustained bodily injury.

see Appendix A (Statutory Index).000 Increase in Level no increase add 1 add 2 add 3 add 4 add 5 add 6 add 7. however. (E) Provided.000. (5) (6) (7) Cross Reference (1) If a victim was killed under circumstances that would constitute murder under 18 U. (4) (A) If any person was abducted to facilitate commission of the offense or to facilitate escape. Commentary Statutory Provisions: 18 U. If the loss exceeded $10. – 112 – . destructive device. 2118(a).000 More than $250. add 5 levels. add 3 levels.000 More than $2.1 (First Degree Murder).C. or If the degree of injury is between that specified in subdivisions (B) and (C). If the offense involved carjacking. increase by 2 levels.1 (C) (D) GUIDELINES M ANUAL November 1.000 More than $800.000 More than $50. or (B) if any person was physically restrained to facilitate commission of the offense or to facilitate escape. increase by 2 levels. For additional statutory provision(s). that the cumulative adjustments from (2) and (3) shall not exceed 11 levels. §§ 1951. increase the offense level as follows: Loss (Apply the Greatest) (A) (B) (C) (D) (E) (F) (G) (H) (c) $10. apply §2A1.S.000. 2114.000 More than $1.S.000 or less More than $10. increase by 4 levels. increase by 1 level.C. 2113.000 More than $5. or if the taking of such item was an object of the offense. 2009 Permanent or Life-Threatening Bodily Injury add 6 If the degree of injury is between that specified in subdivisions (A) and (B).500. If a firearm. 2119. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States. or controlled substance was taken.500.§2B3.

If the defendant intended to murder the victim. Attempted Murder). – 113 – . Moreover. "Give me the money or I will shoot you". a defendant wrapped a hand in a towel during a bank robbery to create the appearance of a gun)." as used in subsection (b)(2)(F). the gradations for property loss increase more slowly than for simple property offenses." "bodily injury. and unlawful restraint sometimes occur during a robbery.g." "brandished. 3. or combination thereof." "permanent or life-threatening bodily injury. physical injury. "Loss" means the value of the property taken. The combined adjustments for weapon involvement and injury are limited to a maximum enhancement of 11 levels.1 (Application Instructions). "Give me the money or I will pull the pin on the grenade I have in my pocket".November 1. its importance was small compared to that of the other harm involved." "dangerous weapon. 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. 4. 2. Accordingly.1 (Assault with Intent to Commit Murder. damaged. an increase of 1 or 2 levels brings about a considerable increase in sentence length in absolute terms." and "physically restrained" are defined in the Commentary to §1B1.. 6." "destructive device. or destroyed. Background: Possession or use of a weapon. 2009 GUIDELINES MANUAL §2B3. 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.1 (Application Instructions). For example. Consistent with Application Note 1(d)(ii) of §1B1." "serious bodily injury. gesture. "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. an upward departure may be warranted. "Give me your money or else (where the defendant draws his hand across his throat in a slashing motion)". a fear of death. 5. may be in the form of an oral or written statement. Accordingly. The guideline provides for a range of enhancements where these factors are present. 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. or "Give me the money or you are dead" would constitute a threat of death.1 Application Notes: 1. "A threat of death. act." "abducted. see §2A2. who is a victim of the offense." "otherwise used. "Firearm. Although in pre-guidelines practice the amount of money taken in robbery cases affected sentence length. because of the relatively high base offense level for robbery. an oral or written demand using words such as "Give me the money or I will kill you". the defendant does not have to state expressly his intent to kill the victim in order for the enhancement to apply.

2. or by or for a government entity in furtherance of the administration of justice. or (ii) the participant(s) otherwise demonstrated the ability to carry out a threat described in any of subdivisions (i)(I) through (i)(V). 2009 The guideline provides an enhancement for robberies where a victim was forced to accompany the defendant to another location. bound. increase by 4 levels. §2B3. or – 114 – .000. If the greater of the amount demanded or the loss to the victim exceeded $10. 1990 (see Appendix C. (iv) if a dangerous weapon was otherwise used. November 1. and 361).1 GUIDELINES M ANUAL November 1. November 1. or (V) damage to a computer system used to maintain or operate a critical infrastructure. 1987. Historical Note: Effective November 1. November 1. amendments 110 and 111). 2000 (see Appendix C. November 1. (IV) product tampering. national defense. Amended effective June 15. amendment 617). 1997 (see Appendix C. 1988 (see Appendix C. 1993 (see Appendix C. or (v) if a dangerous weapon was brandished or possessed. (III) kidnapping. or national security. increase by 2 levels. increase by 3 levels. 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). or kidnapping. add 3 levels. amendment 483). (ii) if a firearm was otherwise used. 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. (iii) if a firearm was brandished or possessed.§2B3. or locked up. (4) If any victim sustained bodily injury. November 1. amendments 314. 315. increase by the corresponding number of levels from the table in §2B3. amendment 601).1(b)(7). bodily injury. 1991 (see Appendix C. or was physically restrained by being tied. increase by 5 levels. or (B) If (i) the offense involved preparation to carry out a threat of (I) death. 1989 (see Appendix C. increase by 3 levels. amendment 365). November 1. (A)(i) If a firearm was discharged. amendments 14 and 15). increase by 7 levels. increase by 6 levels. amendments 545 and 552). (II) serious bodily injury. 2001 (see Appendix C.

transportation systems and services (including highways. that the cumulative adjustments from (3) and (4) shall not exceed 11 levels. or (B) if any person was physically restrained to facilitate commission of the offense or to facilitate escape. or any combination of those matters. public health or safety. increase by 4 levels. "Government entity" has the meaning given that term in 18 U. mass transit." "permanent or life-threatening bodily injury." "dangerous weapon.1 (Application Instructions)." "bodily injury. 1951." "brandished. and government operations that provide essential services to the public. economic security. however. police. apply §2A1. (c) Cross References (1) If a victim was killed under circumstances that would constitute murder under 18 U. financing and banking systems. 1030(a)(7)." and "serious bodily injury" have the meaning given those terms in Application Note 1 of the Commentary to §1B1. national security. apply §2A2. 2009 GUIDELINES MANUAL §2B3. see Appendix A (Statutory Index)." "otherwise used. electrical power delivery systems." "firearm.S. 877. 876.1 (Assault with Intent to Commit Murder. airlines. Provided. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States. fire." "physically restrained. Examples of critical infrastructures include gas and oil production. If the offense was tantamount to attempted murder. add 5 levels.1 (First Degree Murder). Application Notes: 1.November 1.2 (E) If the degree of injury is between that specified in subdivisions (B) and (C). "Critical infrastructure" means systems and assets vital to national defense.C. – 115 – . storage. § 1030(e)(9). and airports). increase by 2 levels.C. Definitions. (2) Commentary Statutory Provisions: 18 U. A critical infrastructure may be publicly or privately owned. telecommunications networks. Attempted Murder) if the resulting offense level is greater than that determined above. emergency services (including medical. and delivery systems. For additional statutory provision(s). water supply systems.—For purposes of this guideline: "Abducted.C. §§ 875(b).S. and rescue services). (5) (A) If any person was abducted to facilitate commission of the offense or to facilitate escape.S.

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

1951.C. § 873. Amended effective November 1. Historical Note: Effective November 1.C. * * * * * – 117 – . or (B) exceeded $5. 2005 (see Appendix C. Application Note: 1. §§ 875-877. 2001 (see Appendix C.S.November 1. Extortion Under Color of Official Right. § 873) is defined as a threat to disclose a violation of United States law unless money or some other item of value is given.C. Giving. Commentary (2) Statutory Provisions: 18 U.S. apply §2C1. §§ 873. For additional statutory provision(s). If the offense involved extortion by force or threat of injury or serious damage. the maximum term of imprisonment authorized for blackmail is one year. November 1. see Appendix A (Statutory Index). November 1.000.000 but did not exceed $5. Conspiracy to Defraud by Interference with Governmental Functions). This section applies only to blackmail and similar forms of extortion where there clearly is no threat of violence to person or property. amendment 114). may also be prosecuted under 18 U. 875-877.S. Property Destruction. increase by 1 level.3 §2B3. 1989 (see Appendix C.S. Background: Under 18 U. amendment 679).000. or other threats that are less serious than those covered by §2B3.3. increase by the number of levels from the table in §2B1. 2009 GUIDELINES MANUAL §2B3. 1987. and Fraud) corresponding to that amount. 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 $2.2.C. Extortionate threats to injure a reputation. or Receiving a Bribe. apply §2B3. November 1. which carry higher maximum sentences. (c) Cross References (1) If the offense involved extortion under color of official right.1 (Theft. "Blackmail" (18 U. Fraud Involving the Deprivation of the Intangible Right to Honest Services of Public Officials. Soliciting. 1993 (see Appendix C.1 (Offering.2 (Extortion by Force or Threat of Injury or Serious Damage). amendment 479). amendment 617).

increase by 2 levels. increase by the number of levels from the table in §2B1.S. See Part C. (Apply the greater) If— (A) the defendant derived more than $1.000.1 4.S.C. (2) (B) If the resulting offense level determined under subdivision (A) or (B) is less than level 24. §§ 215. or the offense substantially jeopardized the safety and soundness of a financial institution.000. (c) Special Instruction for Fines .C.C. 42 U.C. 9042(d). if any such officials are involved. see Appendix A (Statutory Index). or local government.C. 54.000.4 (Base Fine). 41 U. increase by 1 level. 225.S. GUIDELINES M ANUAL November 1. 26 U. 49 U. (B) the value of the benefit received or to be received in return for the unlawful payment.§2B4. Property Destruction. increase to level 24.(2). 1396h(b)(1). 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 $2.1 (Theft. foreign governments. Application Notes: 1. §§ 1395nn(b)(1).1. increase by 4 levels. or (B) exceeded $5. state. or public international organizations.000 but did not exceed $5. §§ 53. § 11902.Organizations (1) In lieu of the pecuniary loss under subsection (a)(3) of §8C2.S. Offenses Involving Public Officials. (2). or (C) the consequential damages resulting from the unlawful payment. 2009 COMMERCIAL BRIBERY AND KICKBACKS §2B4. This guideline covers commercial bribery offenses and kickbacks that do not involve officials of federal. and Fraud) corresponding to that amount. use the greatest of: (A) the value of the unlawful payment. For additional statutory provision(s). 224.S. Commentary Statutory Provisions: 18 U. §§ 9012(e). – 118 – .000 in gross receipts from one or more financial institutions as a result of the offense.

medical or hospital insurance association.November 1. (C) was unable on demand to refund fully any deposit. whichever is greater. Definition. pension funds of large national and international organizations.1 2. with the Securities and Exchange Commission. trust company. Enhancement for Substantially Jeopardizing the Safety and Soundness of a Financial Institution under Subsection (b)(2)(B). If the defendant is convicted under 18 U. credit union. primarily include large pension funds that serve many individuals (e. 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. and corporations doing substantial interstate business). investment company. 1005-1007. 3. § 982(a)(4). as a consequence of the offense. the institution (A) became insolvent. union or employee pension fund.S. or investment. "Union or employee pension fund" and "any health. brokers and dealers registered. Giving.000. – 119 – . medical or hospitalization insurance) to large numbers of persons." as used above. and any similar entity. 656.—For purposes of subsection (b)(2)(A). and 1014. "Financial institution.—For purposes of subsection (b)(2)(B).C." as used in this guideline. whether or not insured by the federal government. an offense shall be considered to have substantially jeopardized the safety and soundness of a financial institution if.000 in gross receipts if the gross receipts to the defendant individually.— (A) In General. is defined to include any institution described in 18 U.S. disability.—"Gross receipts from the offense" includes all property. (B) 5. or Receiving a Bribe. futures commodity merchants and commodity pool operators registered. the defendant shall be considered to have derived more than $1. 657. Fraud Involving the Deprivation of the Intangible Right to Honest Services of Public Officials. any state or foreign bank. Extortion Under Color of Official Right.g. with the Commodity Futures Trading Commission. any health. §§ 20. or required to be registered. and associations that undertake to provide pension." 6. unions. rather than to all participants.S. real or personal. 2009 GUIDELINES MANUAL §2B4. medical. Gross Receipts Enhancement under Subsection (b)(2)(A). § 225 (relating to a continuing financial crimes enterprise). or (E) was placed in substantial jeopardy of any of subdivisions (A) through (D) of this note. tangible or intangible. payment. or other benefits (e. See 18 U.. mutual fund. the offense level is that applicable to the underlying series of offenses comprising the "continuing financial crimes enterprise. insurance company. (D) was so depleted of its assets as to be forced to merge with another institution in order to continue active operations.C. (B) substantially reduced benefits to pensioners or insureds.000. or required to be registered.. 4.1 (Offering.C. or hospital insurance association. 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. savings (building and loan) association. which is obtained directly or indirectly as a result of such offense.g.000. Background: This guideline applies to violations of various federal bribery statutes that do not involve governmental officials. Conspiracy to Defraud by Interference with Governmental Functions). exceeded $1. See Commentary to §2C1. Soliciting.

as well as certain violations of the Interstate Commerce Act. in increasing the offense level. this guideline considers not only the amount of the bribe but also the value of the action received in return.S. Similar provisions in 42 U. 1992 (see Appendix C. §§ 1395nn(b)(1) and (b)(2). 1991 (see Appendix C. This guideline also applies to violations of 18 U. Violations of 42 U. involve the offer or acceptance of a payment to refer an individual for services or items paid for under the Medicare program. amendment 617). 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.S. If a gambler paid a player $5. 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. * * * * * – 120 – .§2B4.000 loan under terms for which the applicant would not otherwise qualify. 1987. Subsection (b)(2)(A) implements.C. November 1. amendment 468). the instruction to the Commission in section 961(m) of Public Law 101-73. if a bank officer agreed to the offer of a $25.000 bribe to approve a $250. the amount of the bribe would be used to determine the appropriate increase in offense level. §§ 1396h(b)(1) and (b)(2) cover the offer or acceptance of a payment for referral to the Medicaid program.C. 1990 (see Appendix C. Thus.S. would use the greater of the $25. amendments 639 and 646). and the savings in interest over the life of the loan compared with alternative loan terms. for example.000 bribe. Subsection (b)(2)(B) implements the instruction to the Commission in section 2507 of Public Law 101-647. the value of the action to the gambler would be the amount that he and his confederates won or stood to gain.000 to shave points in a nationally televised basketball game.1 GUIDELINES M ANUAL November 1. 53-54. in a broader form. 1997 (see Appendix C. November 1.S. amendment 317). § 215. 41 U. As with non-commercial bribery.C.S.C. November 1. Historical Note: Effective November 1. These offenses are prohibited under 26 U.C.C. §§ 9012(e) and 9042(d). Amended effective November 1. §§ 51. 2001 (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.S. which apply to candidates for President and Vice President whose campaigns are eligible for federal matching funds. 2004 (see Appendix C. 2002 (see Appendix C. sports bribery. amendments 364 and 422). November 1. amendment 553). the court. § 224. If that amount could not be estimated. amendment 666). November 1.

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

000 but did not exceed $5. Historical Note: Effective November 1. [Deleted] Historical Note: Section 2B5. November 1. amendment 587).C.— This guideline applies to counterfeiting of United States currency and coins. the Commonwealth of Puerto Rico. Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States). was deleted by consolidation with §2F1. 1993 (see Appendix C. Applicability to Counterfeit Bearer Obligations of the United States. amended effective January 15. amendment 16). Inapplicability to Certain Obviously Counterfeit Items. 2001 (see Appendix C.. 1989 (see Appendix C. the United States Virgin Islands. "United States" means each of the fifty states. food stamps. amendment 17) and November 1.3. amendment 731). Criminal Infringement of Copyright or Trademark (a) (b) Base Offense Level: 8 Specific Offense Characteristics (1) If the infringement amount (A) exceeded $2.S. amendments 617 and 618).—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. Subsection (b)(4) implements. November 1. amendment 481). i. an enhancement is provided for a defendant who produces. 1997 (see Appendix C.e. 1987.2. Guam. that are not made out to a specific payee. Similarly. 1989 (see Appendix C. 1998 (see Appendix C. bearer bonds and other items that generally could be described as bearer obligations of the United States. amendment 115). 1988 (see Appendix C. and American Samoa. Property Destruction. 1995 (see Appendix C.1 (Theft. §2B5.1 effective November 1. – 122 – .2 (Forgery. treasury bills. 2009 "Distinctive counterfeit deterrent" and "distinctive paper" have the meaning given those terms in 18 U. effective November 1. 3.000. the Northern Mariana Islands.1 GUIDELINES M ANUAL November 1. rather than merely passes. 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.§2B5. the instruction to the Commission in section 110512 of Public Law 103-322. November 1. the counterfeit items. respectively. or (B) exceeded $5. in a broader form. amendments 595 and 605). amendment 116). the District of Columbia. November 1. 2009 (see Appendix C. § 474A(c)(2) and (1). Amended effective January 15. 1988 (see Appendix C. increase by the number of levels from the table in §2B1. and Fraud) corresponding to that amount. postage stamps.000. 1987. November 1. amendment 554). increase by 1 level. November 1. §2B5. 2000 (see Appendix C. 2. amendment 513). November 1.

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

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

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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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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

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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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1987. November 1. [Deleted] GUIDELINES M ANUAL November 1. or Receiving a Bribe. was deleted by consolidation with §2C1. or (B) the defendant committed the offense for the purpose of obtaining a specific. amendment 666). amendment 617). 1992 (see Appendix C. or Expenditure in Violation of the Federal Election Campaign Act. amendment 617). §2C1. amendment 666). increase by 4 levels. apply §2C1. Receiving. an illegal transaction made by or received from— (A) (B) (3) a foreign national. [Deleted] Historical Note: Effective November 1.000.§2C1. §2C1. Fraudulently Misrepresenting Campaign Authority. solicitation. November 1. increase by 4 levels. 1997 (see Appendix C. Donation. increase by 2 levels. 1991 (see Appendix C. amendment 653).7. expenditure. and Fraud) corresponding to that amount. donation. Property Destruction.1 (Offering. If the defendant engaged in 30 or more illegal transactions. If the offense involved a contribution. (Apply the greater) If the offense involved. (2) If (A) the offense involved the contribution. 2004 (see Appendix C. or coercion. November 1.8. Soliciting. amendment 547). Giving. increase by 2 levels. 2003 (see Appendix C. Amended effective November 1. 2001 (see Appendix C. 2009 Historical Note: Effective November 1. or Failing to Report a Contribution. or expenditure made or obtained through intimidation.2 effective November 1.6 §2C1.1 effective November 1. directly or indirectly. threat of pecuniary or other harm. Extortion Under Color of – 136 – . increase by 2 levels. amendment 468). disbursement.1 (Theft. (4) (5) (c) Cross Reference (1) If the offense involved a bribe or gratuity. increase by the number of levels from the table in §2B1. Amended effective November 1. or receipt of governmental funds. amendment 368). donation. identifiable non-monetary Federal benefit. Making. was deleted by consolidation with §2C1. or a government of a foreign country.6. 2001 (see Appendix C. solicitation. 2004 (see Appendix C. 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.

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

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

or (iii) level 38. increase by 2 levels. or the offense level specified in the Drug Quantity Table set forth in subsection (c).S. decrease by 2 levels. if the defendant is convicted under 21 U.C.C. (ii) level 34 or level 36.S. or 21 U.C. OR POSSESSION. or 30.OFFENSES INVOLVING DRUGS AND NARCO-TERRORISM Historical Note: Effective November 1.S. If the defendant unlawfully imported or exported a controlled substance under circumstances in which (A) an aircraft other than a regularly – 139 – (2) . or (b)(1)(C).S. if the defendant is convicted under 21 U. Amended effective November 1. (b)(1)(B). IMPORTING. Importing. EXPORTING. and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance. or (b)(3).1. except that if (A) the defendant receives an adjustment under §3B1. 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 (b)(3).2 (Mitigating Role).C. (b)(2).November 1. decrease by 4 levels.C. (2) (3) (4) (5) (b) Specific Offense Characteristics (1) If a dangerous weapon (including a firearm) was possessed.C. § 841(b)(1)(E) or 21 U. or 38. if the defendant is convicted under 21 U. (b)(2).S.S. (b)(1)(B). § 960(b)(1). 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. amendment 711). § 960(b)(5). if the defendant is convicted under 21 U. decrease by 3 levels. § 841(b)(1)(E) or 21 U. § 841(b)(1)(A). or (b)(1)(C). UNLAWFUL MANUFACTURING. or 21 U. § 960(b)(5). and (B) the base offense level under subsection (c) is (i) level 32. § 841(b)(1)(A).C. § 960(b)(1).S. and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance.S.C. 2007 (see Appendix C. 1987. Unlawful Manufacturing. 2009 GUIDELINES MANUAL §2D1. Exporting. TRAFFICKING. 1.1 PART D . or Trafficking (Including Possession with Intent to Commit These Offenses). CONTINUING CRIMINAL ENTERPRISE §2D1. Attempt or Conspiracy (a) Base Offense Level (Apply the greatest): (1) 43. or 26.

C. increase by 2 levels. methamphetamine on premises where a minor is present or resides. or release into the environment of a hazardous or toxic substance.3 (Relevant Conduct). increase by 2 levels.§2D1.2 (Mitigating Role). If the defendant. flight officer. or (ii) the unlawful transportation. increase by 2 levels. or possessing with intent to distribute. § 2285 was used. increase by 2 levels. (Apply the greatest): (A) If the offense involved (i) an unlawful discharge. copilot. or a person for whose conduct the defendant is accountable under §1B1. distributed a controlled substance through mass-marketing by means of an interactive computer service. or disposal of a hazardous waste. (3) If the object of the offense was the distribution of a controlled substance in a prison. navigator.1 GUIDELINES M ANUAL November 1. § 865. § 860a of distributing.S. increase by 2 levels. and (B) the defendant is not subject to an adjustment under §3B1. increase by 2 levels. treatment. If the resulting offense level is less than level 26.S. storage. If the resulting offense level is less than level 14. emission. If the offense involved the distribution of an anabolic steroid and a masking agent.C. If the defendant is convicted under 21 U. 2009 scheduled commercial air carrier was used to import or export the controlled substance. increase to level 26. increase by 2 levels. increase to level 14. § 841(g)(1)(A). correctional facility. or any other operation officer aboard any craft or vessel carrying a controlled substance. If the defendant was convicted under 21 U. increase by 2 levels. If the defendant was convicted under 21 U. If— (4) (5) (6) (7) (8) (9) (10) (B) (C) – 140 – . If the defendant distributed an anabolic steroid to an athlete.S. or (C) the defendant acted as a pilot. increase by 2 levels. increase by 2 levels.C. or detention facility. 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. (B) a submersible vessel or semi-submersible vessel as described in 18 U. captain.C.S.

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

5 KG or more of Cocaine Base. or 1. M 1. or 3 KG or more of PCP (actual).000 but less than 1. or at least 1 KG but less than 3 KG of PCP (actual).5 KG but less than 4.000 units or more of Ketamine. 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. At least 1 KG but less than 3 KG of a Fentanyl Analogue.5 KG or more of Methamphetamine (actual). M 6. At least 200 KG but less than 600 KG of Hashish Oil. M 15 KG or more of Methamphetamine. M 30. At least 4 KG but less than 12 KG of Fentanyl.000 units of Flunitrazepam. M 30. or at least 500 G but less than 1. M 300 G or more of LSD.000 units or more of Schedule I or II Depressants.000.5 KG of Methamphetamine (actual). At least 500 G but less than 1.000 but less than 30. or at least 300 G but less than 1 KG of PCP (actual).§2D1. At least 1. M 30 KG or more of PCP. M 12 KG or more of Fentanyl.5 KG of "Ice".000.875. At least 3 KG but less than 10 KG of PCP.5 KG or more of "Ice". M 3 KG or more of a Fentanyl Analogue. At least 50 KG but less than 150 KG of Cocaine. At least 2. 150 KG or more of Cocaine.5 KG of Amphetamine (actual). M 15 KG or more of Amphetamine. At least 3 KG but less than 10 KG of Heroin.000 KG but less than 30.1 GUIDELINES MANUAL November 1.875.000.000 KG but less than 6.000 KG or more of Hashish.000. At least 100 G but less than 300 G of LSD. or at least 500 G but less than 1.000 units of Ketamine.000 KG of Hashish.5 KG or more of Amphetamine (actual). At least 15 KG but less than 50 KG of Cocaine.000 KG or more of Marihuana.000 but less than 30.000. At least 5 KG but less than 15 KG of Methamphetamine.000 KG of Marihuana.5 KG of Cocaine Base. Level 36 (3) M M M M Level 34 – 142 – . 2009 (c) DRUG QUANTITY TABLE Controlled Substances and Quantity* (1) M M Base Offense Level Level 38 30 KG or more of Heroin.000. M 30.000 units of Schedule I or II Depressants. At least 10. M 600 KG or more of Hashish Oil. M 4. At least 5 KG but less than 15 KG of Amphetamine.000 units or more of Flunitrazepam. At least 10. At least 10 KG but less than 30 KG of PCP.5 KG of Cocaine Base. At least 625. or at least 500 G but less than 1. or 1.

At least 1 KG but less than 3 KG of PCP. M At least 3. At least 70 G but less than 100 G of a Fentanyl Analogue. At least 7 G but less than 10 G of LSD.000 KG but less than 10.000. or at least 150 G but less than 500 G of Amphetamine (actual).000 but less than 10. or at least 100 G but less than 300 G of PCP (actual). or at least 150 G but less than 500 G of Methamphetamine (actual). M At least 187. or at least 35 G but less than 50 G of "Ice". At least 100 G but less than 300 G of a Fentanyl Analogue. At least 350 G but less than 500 G of Amphetamine. or at least 50 G but less than 150 G of "Ice".000 KG but less than 3.000 KG of Marihuana. At least 3. or at least 70 G but less than 100 G of PCP (actual).000 units of Ketamine. M At least 1.2 KG of Fentanyl. At least 1.500 but less than 625. M At least 60 KG but less than 200 KG of Hashish Oil.000 but less than 3. At least 500 G but less than 1. 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. or at least 35 G but less than 50 G of Amphetamine (actual). At least 5 KG but less than 15 KG of Cocaine. At least 50 G but less than 150 G of Cocaine Base. At least 700 G but less than 1 KG of PCP. or at least 150 G but less than 500 G of "Ice".November 1. At least 1. At least 280 G but less than 400 G of Fentanyl. At least 500 G but less than 1. At least 20 KG but less than 60 KG of Hashish Oil. At least 1.000.000 units of Ketamine.5 KG of Amphetamine. At least 10 G but less than 30 G of LSD.000 but less than 10. At least 400 G but less than 1.000 units of Schedule I or II Depressants. At least 700 G but less than 1 KG of Heroin.000 KG of Hashish. M At least 3.500 units of Flunitrazepam.000 units of Flunitrazepam.5 KG but less than 5 KG of Cocaine.000.2 KG but less than 4 KG of Fentanyl.5 KG but less than 5 KG of Methamphetamine. or at least 35 G but less than 50 G of Methamphetamine (actual).000 units of Schedule I or II Depressants.000.000.5 KG of Methamphetamine. At least 62.000 KG of Marihuana.000 but less than 3. At least 350 G but less than 500 G of Methamphetamine.000. or at least 50 G but less than 150 G of Amphetamine (actual). M At least 30 G but less than 100 G of LSD. or at least 50 G but less than 150 G of Methamphetamine (actual).5 KG but less than 5 KG of Amphetamine.000. M At least 600 KG but less than 2. At least 150 G but less than 500 G of Cocaine Base. M At least 1. M At least 300 G but less than 1 KG of a Fentanyl Analogue. M At least 3.500 but less than 187. At least 200 KG but less than 600 KG of Hashish.1 At least 1. Level 32 (5) M M M M M Level 30 M M M M – 143 – . 2009 GUIDELINES MANUAL §2D1.000.

000 units of Schedule I or II Depressants. At least 200 G but less than 350 G of Amphetamine.000. or at least 40 G but less than 70 G of PCP (actual). At least 400 KG but less than 700 KG of Marihuana.000 units of Flunitrazepam.000 but less than 700. At least 140 KG but less than 200 KG of Hashish.000. At least 700. M At least 20 KG but less than 80 KG of Hashish.§2D1.000 but less than 400. or at least 5 G but less than 20 G of "Ice".000 units of Ketamine.000 units of Schedule I or II Depressants. At least 80 KG but less than 140 KG of Hashish. M At least 20 G but less than 35 G of Cocaine Base. or at least 5 G but less than 20 G of Amphetamine (actual).000 units of Ketamine. At least 160 G but less than 280 G of Fentanyl. or at least 5 G but less than 20 G of Methamphetamine (actual).000 but less than 400.250 but less than 25. At least 14 KG but less than 20 KG of Hashish Oil. or at least 20 G but less than 35 G of Methamphetamine (actual). M M Level 26 – 144 – . M At least 100.000 units of Schedule III Hydrocodone. M At least 100 KG but less than 400 KG of Marihuana.000 but less than 43. or at least 20 G but less than 35 G of "Ice".1 M M M M M M M GUIDELINES MANUAL November 1. At least 4 G but less than 7 G of LSD.000 units of Schedule I or II Depressants.5 KG of Cocaine. M At least 2 KG but less than 8 KG of Hashish Oil. (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.000 but less than 1. At least 400. M At least 6. M At least 10 G but less than 40 G of a Fentanyl Analogue.000 KG of Marihuana.000 but less than 700.000 units of Schedule III Hydrocodone.000 but less than 400. At least 400. At least 35 G but less than 50 G of Cocaine Base. or at least 10 G but less than 40 G of PCP (actual). At least 400 G but less than 700 G of PCP. At least 43. 2009 At least 700 KG but less than 1. M At least 50 G but less than 200 G of Methamphetamine. At least 400. At least 40 G but less than 70 G of a Fentanyl Analogue.500 units of Flunitrazepam. At least 25. or at least 20 G but less than 35 G of Amphetamine (actual). At least 400 G but less than 700 G of Heroin. M At least 50 G but less than 200 G of Amphetamine. M At least 40 G but less than 160 G of Fentanyl.000 but less than 700. At least 700.750 but less than 62. At least 8 KG but less than 14 KG of Hashish Oil.000 or more units of Schedule III Hydrocodone. At least 2 KG but less than 3. At least 200 G but less than 350 G of Methamphetamine.000 but less than 1. M At least 100.000 units of Ketamine.750 units of Flunitrazepam. M At least 100 G but less than 400 G of PCP. M At least 100. M At least 1 G but less than 4 G of LSD. At least 500 G but less than 2 KG of Cocaine. 700.

or at least 4 G but less than 6 G of PCP (actual). At least 60.000 units of Schedule I or II Depressants.6 KG but less than 2 KG of Hashish Oil. At least 60. At least 1. At least 80. At least 40 G but less than 50 G of Amphetamine. or at least 6 G but less than 8 G of PCP (actual). 2009 GUIDELINES MANUAL §2D1. or at least 3 G but less than 4 G of Amphetamine (actual).000 units of Flunitrazepam.000 but less than 100. At least 600 MG but less than 800 MG of LSD. or at least 4 G but less than 5 G of "Ice".000 units of Schedule III Hydrocodone. At least 300 G but less than 400 G of Cocaine. At least 30 G but less than 40 G of Methamphetamine. At least 80 KG but less than 100 KG of Marihuana.000 units of Ketamine. M At least 20 G but less than 30 G of Methamphetamine.000 but less than 80. At least 60 G but less than 80 G of Heroin. At least 80 G but less than 100 G of PCP. At least 6 G but less than 8 G of a Fentanyl Analogue.000 but less than 80. At least 3.000 units of Schedule I or II Depressants. At least 8 G but less than 10 G of a Fentanyl Analogue. At least 16 KG but less than 20 KG of Hashish.000 units of Schedule III Hydrocodone.000 units of Ketamine. At least 40 G but less than 50 G of Methamphetamine. At least 1. At least 4 G but less than 5 G of Cocaine Base. or at least 3 G but less than 4 G of "Ice". or at least 2 G but less than 3 G of "Ice".250 units of Flunitrazepam. At least 80. At least 80. At least 5.000 but less than 80. or at least 4 G but less than 5 G of Methamphetamine (actual). M At least 40 G but less than 60 G of PCP. At least 30 G but less than 40 G of Amphetamine. or at least 4 G but less than 5 G of Amphetamine (actual).000 but less than 100. (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. or at least 3 G but less than 4 G of Methamphetamine (actual). Level 20 – 145 – . At least 32 G but less than 40 G of Fentanyl. At least 5 G but less than 20 G of Cocaine Base. At least 800 MG but less than 1 G of LSD. At least 60.6 KG of Hashish Oil.2 KG but less than 1. M At least 3 G but less than 4 G of Cocaine Base. or at least 8 G but less than 10 G of PCP (actual).November 1. At least 24 G but less than 32 G of Fentanyl.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. At least 12 KG but less than 16 KG of Hashish. At least 400 G but less than 500 G of Cocaine.750 but less than 5.000 but less than 6. M At least 200 G but less than 300 G of Cocaine. At least 60 G but less than 80 G of PCP. At least 60 KG but less than 80 KG of Marihuana.000 but less than 100. or at least 2 G but less than 3 G of Methamphetamine (actual).

M At least 8 G but less than 16 G of Fentanyl. M At least 20. M At least 100 G but less than 200 G of Cocaine. or at least 500 MG but less than 1 G of Amphetamine (actual). M 40. or at least 2 G but less than 3 G of Amphetamine (actual).2 KG of Hashish Oil. M At least 2.000 but less than 40.500 units of Flunitrazepam. M At least 500 G but less than 800 G of Hashish Oil. M At least 50 G but less than 100 G of Cocaine. or at least 1 G but less than 2 G of Amphetamine (actual).000 units of Schedule I or II Depressants.000 but less than 40.750 units of Flunitrazepam. or at least 1 G but less than 2 G of PCP (actual). M At least 40. M At least 2 G but less than 4 G of a Fentanyl Analogue. Level 18 Level 16 – 146 – . M At least 800 G but less than 1. M At least 10 G but less than 20 G of Amphetamine. M At least 16 G but less than 24 G of Fentanyl. or at least 500 MG but less than 1 G of "Ice". M At least 400 MG but less than 600 MG of LSD. M At least 10 G but less than 20 G of PCP.000 but less than 60. M At least 20 G but less than 40 G of PCP. or at least 2 G but less than 4 G of PCP (actual). M At least 4 G but less than 6 G of a Fentanyl Analogue. (12) M At least 10 G but less than 20 G of Heroin. M At least 40 KG but less than 60 KG of Marihuana.1 M GUIDELINES MANUAL November 1. M At least 20. M At least 20 KG but less than 40 KG of Marihuana. M At least 1.000 units of Ketamine.500 but less than 3. M At least 8 KG but less than 12 KG of Hashish. M At least 40. M At least 20.000 units of Ketamine.000 or more units of Schedule III substances (except Ketamine or Hydrocodone). M At least 100 MG but less than 200 MG of LSD.000 units of Schedule I or II Depressants.000 units of Schedule III Hydrocodone. M At least 40. M At least 20.250 but less than 2.000 but less than 60. M At least 1 G but less than 2 G of Cocaine Base. M At least 200 MG but less than 400 MG of LSD. or at least 1 G but less than 2 G of "Ice".000 units of Schedule III Hydrocodone.§2D1.000 but less than 60. or at least 500 MG but less than 1 G of Methamphetamine (actual). 2009 At least 20 G but less than 30 G of Amphetamine. M At least 10 G but less than 20 G of Methamphetamine.000 but less than 40. M At least 5 G but less than 10 G of Amphetamine. or at least 1 G but less than 2 G of Methamphetamine (actual). (11) M At least 20 G but less than 40 G of Heroin.000 but less than 40.000 units of Schedule III substances (except Ketamine or Hydrocodone). M At least 2 G but less than 3 G of Cocaine Base. M At least 5 G but less than 10 G of Methamphetamine. M At least 5 KG but less than 8 KG of Hashish.

M At least 2. At least 200 G but less than 500 G of Hashish Oil. or less than 500 MG of PCP (actual).250 units of Flunitrazepam.000 units of Schedule III substances (except Ketamine or Hydrocodone). or less than 250 MG of Methamphetamine (actual). At least 10.000 units of Ketamine.000 units of Ketamine. or at least 500 MG but less than 1 G of PCP (actual). M At least 2 G but less than 4 G of Fentanyl. At least 10. At least 10. M At least 5. (14) M Less than 5 G of Heroin.000 units of Schedule I or II Depressants.November 1. or at least 250 MG but less than 500 MG of "Ice". At least 625 but less than 1. M At least 1 KG but less than 2 KG of Hashish. M Less than 500 MG of a Fentanyl Analogue. M At least 5. M Less than 50 MG of LSD. 2009 GUIDELINES MANUAL §2D1. M At least 500 MG but less than 1 G of a Fentanyl Analogue. Level 14 Level 12 – 147 – .000 but less than 20. M At least 500 MG but less than 1 G of Cocaine Base.000 units of Schedule I or II Depressants. M At least 500 G but less than 1 KG of Hashish. M At least 5. At least 1 G but less than 2 G of a Fentanyl Analogue.000 units of Schedule III Hydrocodone. At least 10. M Less than 2 G of Fentanyl. M Less than 5 G of PCP.1 M M M M M M M M M M At least 4 G but less than 8 G of Fentanyl. M At least 2.5 G of Methamphetamine. M At least 50 G but less than 100 G of Hashish Oil. M At least 5. M Less than 500 MG of Cocaine Base. M At least 5 G but less than 10 G of PCP. M At least 312 but less than 625 units of Flunitrazepam.000 units of Schedule III Hydrocodone.000 but less than 10. or less than 250 MG of "Ice". M Less than 25 G of Cocaine. or at least 250 MG but less than 500 MG of Methamphetamine (actual). M Less than 2.000 but less than 10.000 but less than 20. M At least 25 G but less than 50 G of Cocaine. M At least 50 MG but less than 100 MG of LSD.000 but less than 10. M At least 5 KG but less than 10 KG of Marihuana.5 KG but less than 5 KG of Marihuana.5 G of Amphetamine. M Less than 2.000 but less than 20.5 G but less than 5 G of Amphetamine. or less than 250 MG of Amphetamine (actual). or at least 250 MG but less than 500 MG of Amphetamine (actual). At least 2 KG but less than 5 KG of Hashish. M At least 100 G but less than 200 G of Hashish Oil. M At least 2. At least 10 KG but less than 20 KG of Marihuana.000 but less than 20.000 units of Schedule III substances (except Ketamine or Hydrocodone).000 but less than 10. (13) M At least 5 G but less than 10 G of Heroin.5 G but less than 5 G of Methamphetamine.

M Less than 250 units of Ketamine.000 units of Schedule IV substances (except Flunitrazepam).500 but less than 5. M At least 1. M At least 5 G but less than 20 G of Hashish Oil. *Notes to Drug Quantity Table: (A) Level 10 Level 8 Level 6 Unless otherwise specified. (16) M At least 250 G but less than 1 KG of Marihuana. – 148 – .§2D1.500 but less than 5.000 or more units of Schedule V substances. M At least 62 but less than 156 units of Flunitrazepam. M Less than 250 units of Schedule III substances (except Ketamine or Hydrocodone). M At least 200 G but less than 500 G of Hashish. M 40. At least 2. M At least 1. If a mixture or substance contains more than one controlled substance. 2009 At least 2.500 but less than 5. 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. (17) M Less than 250 G of Marihuana.000 but less than 2.000 units of Schedule IV substances (except Flunitrazepam).000 units of Schedule I or II Depressants. 40.000 but less than 16.000 units of Schedule V substances. M At least 250 but less than 1.500 units of Schedule I or II Depressants. M Less than 250 units of Schedule III Hydrocodone. M At least 1.000 units of Schedule III substances (except Ketamine or Hydrocodone). M Less than 5 G of Hashish Oil.500 units of Schedule III Hydrocodone. At least 156 but less than 312 units of Flunitrazepam.500 units of Ketamine. M At least 50 G but less than 200 G of Hashish.000 but less than 2. M At least 4. At least 2. M At least 250 but less than 1.1 M M M M M M GUIDELINES MANUAL November 1.500 units of Schedule III substances (except Ketamine or Hydrocodone).000 units of Schedule I or II Depressants.000 units of Schedule III substances (except Ketamine or Hydrocodone). (15) M At least 1 KG but less than 2. M At least 250 but less than 1.000 units of Schedule IV substances (except Flunitrazepam). M At least 16.000 but less than 2. M At least 20 G but less than 50 G of Hashish Oil.500 but less than 5.5 KG of Marihuana.000 units of Schedule III Hydrocodone. M Less than 250 units of Schedule I or II Depressants. M At least 1.000 units of Ketamine. M Less than 62 units of Flunitrazepam. At least 2.000 but less than 2. M Less than 50 G of Hashish. M At least 250 but less than 1. M Less than 40. M Less than 4.000 or more units of Schedule IV substances (except Flunitrazepam).000 but less than 40.000 units of Schedule III Hydrocodone.000 units of Ketamine. the weight of the entire mixture or substance is assigned to the controlled substance that results in the greater offense level.

(C) (D) "Ice. means "crack.S. do not use the weight of the LSD/carrier medium. In the case of Schedule I or II Depressants (except gamma-hydroxybutyric acid). one "unit" means one pill. "Amphetamine (actual)". regardless of sex. and (iii) fragments of plant material (such as cystolith fibers).1 (B) The terms "PCP (actual)"." "Crack" is the street name for a form of cocaine base. treat each plant. a mixture weighing 10 grams containing PCP at 50% purity contains 5 grams of PCP (actual). usually prepared by processing cocaine hydrochloride and sodium bicarbonate. – 149 – . 865. patch. contained in the pill. contained in the mixture or substance..F. treat each dose of LSD on the carrier medium as equal to 0.11(d)(25)). one "unit" means 0.November 1. or methamphetamine (actual). for the purposes of this guideline. means a resinous substance of cannabis that includes (i) one or more of the tetrahydrocannabinols (as listed in 21 C. and "Methamphetamine (actual)" refer to the weight of the controlled substance. § 1308. and Schedule V substances. For additional statutory provision(s). For example. dark colored oil.g. see Appendix A (Statutory Index). "Cocaine base.11(d)(25)). Typically. If the substance (except gamma-hydroxybutyric acid) is in liquid form.5 ml. §§ 841(a). itself. Schedule III substances.R.C. Commentary (E) (F) (G) (H) (I) Statutory Provisions: 21 U. for the purposes of this guideline. amphetamine (actual). aerosol). the court shall consider that each 25 mg of an anabolic steroid is one "unit".F. however. as equivalent to 100 G of marihuana. or the offense level determined by the weight of the PCP (actual). The term "Oxycodone (actual)" refers to the weight of the controlled substance. but it can vary from a dry resin to a colorless liquid. or mixture. (g). or cannabichromene. (7). In the case of an offense involving marihuana plants. use the offense level determined by the entire weight of the mixture or substance. and usually appearing in a lumpy.4 mg of LSD for the purposes of the Drug Quantity Table. For an anabolic steroid that is not in a pill. Hashish oil. topical cream. Provided. amphetamine. Schedule IV substances. cannabidiol. 49 U. that if the actual weight of the marihuana is greater. plant fragments).g. (b). or tablet. means a mixture or substance containing d-methamphetamine hydrochloride of at least 80% purity. a sheet of blotter paper). and (iii) is essentially free of plant material (e. capsule.R." for the purposes of this guideline. rocklike form. tablet. whichever is greater. use the actual weight of the marihuana. In the case of LSD on a carrier medium (e. or liquid form (e. 860a. (b)(1)-(3). capsule. capsule.. 960(a). § 1308. In making a reasonable estimate. 2009 GUIDELINES MANUAL §2D1. § 46317(b).g. Instead. cannabidiol. or methamphetamine. means a preparation of the soluble cannabinoids derived from cannabis that includes (i) one or more of the tetrahydrocannabinols (as listed in 21 C. (ii) at least two of the following: cannabinol. (ii) at least two of the following: cannabinol." for the purposes of this guideline. itself. In the case of a mixture or substance containing PCP. Hashish. the court shall determine the base offense level using a reasonable estimate of the quantity of anabolic steroid involved in the offense. or cannabichromene.. hashish oil is a viscous.C.S.

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

C. except in the case of PCP. do not apply §3B1.S. 8. § 3553(f) provides an exception to the applicability of mandatory minimum sentences in certain cases. or hallucinogenic effect on the central nervous system of a controlled substance referenced in this guideline. particularly in the case of heroin. depressant. Use of Drug Equivalency Tables. Interaction with §3B1. this mandatory minimum sentence may be "waived" and a lower sentence imposed (including a downward departure). amphetamine. by reason of a defendant’s "substantial assistance in the investigation or prosecution of another person who has committed an offense.C. financiers. that if an adjustment from subsection (b)(2)(C) applies. and others whose special skill. . (B) (C) 6. or mixtures of unusually high purity may warrant an upward departure. As large quantities are normally associated with high purities." See §5K1. chemists.C. § – 151 – 10. The purity of the controlled substance. 2009 GUIDELINES MANUAL §2D1. or oxycodone for which the guideline itself provides for the consideration of purity (see the footnote to the Drug Quantity Table). Since controlled substances are often diluted and combined with other substances as they pass down the chain of distribution. the statute (21 U. accountants. may be relevant in the sentencing process because it is probative of the defendant’s role or position in the chain of distribution. or hallucinogenic effect on the central nervous system that is substantially similar to the stimulant. trade.3 (Abuse of Position of Trust or Use of Special Skill). the quantities of drugs are to be added.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. compounds.— (A) Controlled Substances Not Referenced in Drug Quantity Table. 9. pilots.3.November 1. or position may be used to significantly facilitate the commission of a drug offense. These professionals include doctors. Certain professionals often occupy essential positions in drug trafficking schemes. an enhancement under §3B1. Whether the controlled substance not referenced in this guideline has a stimulant.—A defendant who used special skills in the commission of the offense may be subject to an adjustment under §3B1. this factor is particularly relevant where smaller quantities are involved. 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. 7. however. In addition. 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. Tables for making the necessary conversions are provided below.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases). as provided in 28 U. 18 U.S.3 (Abuse of Position of Trust or Use of Special Skill). and equivalences derived from. methamphetamine. depressant. § 994(n). See §5C1. profession.S. boat captains.—The Commission has used the sentences provided in. Trafficking in controlled substances. Additionally. Where there are multiple transactions or multiple drug types. bankers.1 (Substantial Assistance to Authorities). Note. Where a mandatory (statutory) minimum sentence applies.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. attorneys.

In a case involving 100 gm of oxymorphone. and look up the total in the Drug Quantity Table to obtain the combined offense level. the combined equivalent weight of all Schedule V controlled substances shall not exceed 999 grams of marihuana). if any. a Schedule I opiate. Where there are controlled substances from more than one schedule (e. applicable to that schedule).) For example.. as the primary basis for the guideline sentences. heroin. In each case. cocaine. in the Drug Equivalency Tables set forth in this Note.g. PCP. (See also Application Note 5. The PCP converts to 70 kilograms of marihuana. In the case of a controlled substance that is not specifically referenced in the Drug Quantity Table.. the LSD converts to 25 kilograms of marihuana. i. add the quantities. if any. LSD and marihuana.—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. converts to an equivalent quantity of 5 kg of marihuana. see subdivision (D) of this note. For certain types of controlled substances. applicable to the combined amounts).1 GUIDELINES MANUAL November 1. (B) Combining Differing Controlled Substances (Except Cocaine Base). however. Find the equivalent quantity of marihuana in the Drug Quantity Table. the ratios in the Drug Equivalency Tables do not necessarily reflect dosages based on pharmacological equivalents. The statute. determine the marihuana equivalency for each schedule separately (subject to the cap. – 152 – . the equivalent quantity of marihuana would be 500 kg. 1 gm of a substance containing oxymorphone.. a quantity of a Schedule IV substance and a quantity of a Schedule V substance).§2D1. which corresponds to a base offense level of 28 in the Drug Quantity Table. 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. methamphetamine.g. 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. Then add the marihuana equivalencies to determine the combined marihuana equivalency (subject to the cap. provides direction only for the more common controlled substances. 2009 841(b)(1)).— (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).e. the marihuana equivalencies in the Drug Equivalency Tables are "capped" at specified amounts (e. convert each of the drugs to its marihuana equivalent. Note: Because of the statutory equivalences. fentanyl. The total is therefore equivalent to 95 kilograms of marihuana. for which the Drug Quantity Table provides an offense level of 24. (C) Examples for Combining Differing Controlled Substances (Except Cocaine Base).

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 1.125 kilograms of marihuana. is equivalent to 625 grams of marihuana. 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. Without the cap. The total is therefore equivalent to 21 kilograms of marihuana. 2009 GUIDELINES MANUAL §2D1. Exceptions to 2-level Reduction.000 units of a Schedule IV substance. The cocaine is equivalent to 16 kilograms of marihuana.25 kilograms).—The 2-level reduction provided in subdivision (i) shall not apply in a case in which: (I) the offense involved 4. the combined equivalent weight would have been 61. a Schedule IV drug. (ii) (II) – 153 – .99 + .000 units of a Schedule III substance.— (i) In General. The total. (iii) (iv) (D) Determining Base Offense Level in Offenses Involving Cocaine Base and Other Controlled Substances. The defendant is convicted of selling 80 grams of cocaine (Level 16) and five kilograms of marihuana (Level 14).1 (ii) The defendant is convicted of selling 500 grams of marihuana (Level 8) and five kilograms of diazepam (Level 8).. the controlled substance(s) other than cocaine base). and V substances.25 kilograms). determine the combined offense level as provided by subdivision (B) of this note.99 kilograms of marihuana set forth as the maximum equivalent weight for Schedule IV substances (without the cap it would have been 6. determined by adding together the above amounts.99 kilograms of marihuana set forth as the maximum equivalent weight for Schedule III substances). 1. 100.999) kilograms. is subject to the cap of 59.—Except as provided in subdivision (ii). which has an offense level of 18 in the Drug Quantity Table.99 kilograms of marihuana set forth as the maximum combined equivalent weight for Schedule III. The marihuana equivalency for the Schedule III substance is 56 kilograms of marihuana (below the cap of 59.99 (56 + 4.November 1. if the offense involves cocaine base ("crack") and one or more other controlled substance.5 kg or more. IV. and reduce the combined offense level by 2 levels. The diazepam. of cocaine base. has an offense level of 10 in the Drug Quantity Table. and 200. The combined equivalent weight. The marihuana equivalency for the Schedule IV substance is subject to a cap of 4. or less than 250 mg.000 units of a Schedule V substance.e. The defendant is convicted of selling 56.

000 gm x 1 kg = 6. (II) (E) Drug Equivalency Tables. the 6. 5 gm of cocaine base converts to 100 kg of marihuana (5 gm x 20 kg = 100 kg). when added to the 10 kg of marihuana results in a combined equivalent quantity of 710 kg of marihuana.1 (iii) Examples. which is reduced by two levels to level 28.5 kg of cocaine.000 kg). 20 gm of cocaine base converts to 400 kg of marihuana (20 gm x 20 kg = 400 kg). which.— 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 – . 1.§2D1. Because the combined offense level for the two drug types after the 2-level reduction is less than the offense level for the heroin.5 kg of cocaine converts to 300 kg of marihuana (1. Under the Drug Quantity Table. For the cocaine and marihuana. Under the Drug Equivalency Tables in subdivision (E) of this note. 710 kg of marihuana corresponds to a combined offense level of 30. Under the Drug Equivalency Tables in subdivision (E) of this note. which is reduced by two levels to 32.100 kg of marihuana. their combined equivalent quantity of 310 kg of marihuana corresponds to a combined offense level of 26 under the Drug Quantity Table. and 6 kg of heroin converts to 6. 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 corresponds to a combined offense level of 34. when added together results in a combined equivalent quantity of 6. which. For the heroin. Under the Drug Quantity Table. and 10 kg of marihuana.000 kg of marihuana corresponds to an offense level 34 under the Drug Quantity Table. the combined offense level for all three drug types remains level 28. and 1. 2009 The case involves 20 gm of cocaine base. 6. the reduction does not apply and the combined offense level for the two drugs remains level 34.000 kg of marihuana (6.5 kg x 200 gm = 300 kg).— (I) GUIDELINES MANUAL November 1. The case involves 5 gm of cocaine base and 6 kg of heroin.

5 kg of marihuana 2.1 100 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 – . that the minimum offense level from the Drug Quantity Table for any of these controlled substances individually.5 kg of marihuana 2. or in combination with another controlled substance. is level 12.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 . 2009 GUIDELINES MANUAL §2D1.5 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.

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. etc.5-Dimethoxy-4-methylamphetamine/DOM = 1 gm of 3. granulated.5 gm of marihuana 0. powdered. Synthetic = 1 gm of marihuana 50 gm of marihuana 5 gm of marihuana 167 gm of marihuana 167 gm of marihuana – 156 – . or in combination with another controlled substance. is level 12.§2D1.1 gm of marihuana 0. that the minimum offense level from the Drug Quantity Table for any of these controlled substances individually.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. or in combination with another controlled substance.5-Dimethoxyamphetamine/DOB = 1 gm of 2.4-Methylenedioxyamphetamine/MDA = 1 gm of 3. that the minimum offense level from the Drug Quantity Table for any of these controlled substances individually.4-Methylenedioxymethamphetamine/MDMA = 1 gm of 3.1 1 gm of Methcathinone = GUIDELINES MANUAL November 1.4-Methylenedioxy-N-ethylamphetamine/MDEA= 1 gm of Paramethoxymethamphetamine/PMA = 1 gm of 1-Piperidinocyclohexanecarbonitrile/PCC = 1 gm of N-ethyl-1-phenylcyclohexylamine (PCE) = 0. Organic = 1 gm of Tetrahydrocannabinol.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. = 1 gm of Hashish Oil = 1 gm of Cannabis Resin or Hashish = 1 gm of Tetrahydrocannabinol. PCP. is level 12. 2009 380 gm of marihuana 40 gm of marihuana 1 gm of N-N-Dimethylamphetamine = *Provided.5 kg of marihuana 1. LSD. Schedule I Marihuana 1 gm of Marihuana/Cannabis.

that the minimum offense level from the Drug Quantity Table for flunitrazepam individually. and Schedule V substances is level 8.1 Flunitrazepam ** 1 unit of Flunitrazepam = 16 gm of marihuana **Provided. Schedule III Hydrocodone**** 1 unit of Schedule III hydrocodone = 1 gm of marihuana ****Provided. that the combined equivalent weight of all Schedule IV (except flunitrazepam) and V substances shall not exceed 4. Schedule IV substances (except flunitrazepam). and Schedule V substances shall not exceed 999. – 157 – . that the combined equivalent weight of all Schedule III substances (except ketamine). Schedule IV substances. or in combination with any Schedule I or II depressants. and Schedule V substances shall not exceed 59. Ketamine 1 unit of ketamine = 1 gm of marihuana Schedule IV Substances (except flunitrazepam)***** 1 unit of a Schedule IV Substance (except Flunitrazepam)= 0. that the combined equivalent weight of all Schedule III substances (except ketamine and hydrocodone).8 gm of marihuana Schedule III Substances (except ketamine and hydrocodone)*** 1 unit of a Schedule III Substance = 1 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.November 1.99 kilograms of marihuana. Schedule III substances. 2009 GUIDELINES MANUAL §2D1.99 kilograms of marihuana.99 kilograms of marihuana. Schedule IV substances (except flunitrazepam).0625 gm of marihuana *****Provided.

4536 kg 1 gal = 3. pill. the following table is provided: MEASUREMENT CONVERSION TABLE 1 oz = 28. pills. or capsule for certain controlled substances.000 ml 1 kg = 1.6 gm 1 lb = 0. or phenylpropanolamine tablets.946 liters 1 gm = 1 ml (liquid) 1 liter = 1.§2D1. in calculating the base offense level. The Typical Weight Per Unit Table. prepared from information provided by the Drug Enforcement Administration. that the combined equivalent weight of Schedule V substances shall not exceed 999 grams of marihuana. pseudoephedrine. GHB.1 GUIDELINES MANUAL November 1. 11. displays the typical weight per dose. Do not use this table if any more reliable estimate of the total weight is available from case-specific information. use the weight of the ephedrine. 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. not the weight of the entire tablets.8 gm marihuana 8. If the number of doses. pills.785 liters 1 qt = 0. or phenylpropanolamine contained in the tablets.8 gm marihuana To facilitate conversions to drug equivalencies.000 mg 1 grain = 64.8 mg. that in a case involving ephedrine. 100 doses of Mescaline at 500 mg per dose = 50 gms of mescaline). – 158 – .35 gm 1 lb = 453.g. pseudoephedrine.. or capsules but not the weight of the controlled substance is known.00625 gm of marihuana ******Provided. or ketamine) 1 ml of 1.000 gm 1 gm = 1. multiply the number of doses. 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. Date Rape Drugs (except flunitrazipam. 2009 Schedule V Substances****** 1 unit of a Schedule V Substance = 0.

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

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

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

prevents the detection of the anabolic steroid in an individual’s body. 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. Application of Subsection (e)(1). after.1 GUIDELINES MANUAL November 1. 24. § 230(f)(2)). respectively. when taken before. "masking agent" means a substance that.—Sections 860a and 865 of title 21. "sexual offense" means a "sexual act" or "sexual contact" as those terms are defined in 18 U.—For purposes of subsection (b)(8). In order to comply with the relevant statute.1 (Criminal Sexual Abuse). an upward departure would be warranted. "athlete" means an individual who participates in an athletic activity conducted by (i) an intercollegiate athletic 26. (B) 25.S.C. § 860a or § 865. Upward Departure Provision. Applicability of Subsection (b)(11).C.—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.— (A) Definition. Section §5C1.S. respectively. is not pertinent to the determination of whether subsection (b)(11) applies. if the applicable adjusted guideline range is 151-188 months and the court determines a "total punishment" of 151 months is appropriate. § 860a or § 865.S. a sentence of 130 months for the underlying offense plus 21 months for the conduct covered by 21 U. "mass-marketing by means of an interactive computer service" means the solicitation. "Interactive computer service". United States Code. for purposes of subsection (b)(6) and this note.C.S.C. § 2246(2) and (3). Imposition of Consecutive Sentence for 21 U. For example. 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. For example.—For purposes of subsection (b)(7). 22. 23. Application of Subsection (b)(8). § 860a or § 865. or in conjunction with an anabolic steroid.—For purposes of this guideline. § 860a or § 865 would achieve the "total punishment" in a manner that satisfies the statutory requirement of a consecutive sentence.S. by means of an interactive computer service. of a large number of persons to induce those persons to purchase a controlled substance.—For purposes of subsection (b)(6).S. require the imposition of a mandatory consecutive term of imprisonment of not more than 20 years and 15 years. Application of Subsection (b)(7). Application of Subsection (b)(6).—If the defendant committed a sexual offense against more than one individual. – 162 – . specifying the number of months to be served consecutively for the conviction under 21 U. has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U.§2D1.2(b). 2009 "Minor" has the meaning given that term in Application Note 1 of the Commentary to §2A3.C. which provides a minimum offense level of level 17. 21.

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

1992 (see Appendix C.1 GUIDELINES MANUAL November 1. Amended effective January 15. 2009 carrier medium. amendment 608). November 1. if the offense involved a person less than eighteen years of age. November 1. amendment 318). amendments 555 and 556). 1994 (see Appendix C. 668. November 1.S. and 674). § 841(b)(1) includes the carrier medium in which LSD is absorbed). 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. November 1. 2002 (see Appendix C. or 1 plus the offense level from §2D1. and 303). United States. 2004 (see Appendix C. and (B) the decision in Chapman v.1 applicable to the quantity of controlled substances directly involving a protected location or an underage or pregnant individual. Subsection (b)(10)(A) implements the instruction to the Commission in section 303 of Public Law 103–237. amendments 479.) Thus. 2000 (see Appendix C. 1988 (see Appendix C. Historical Note: Effective November 1. amendments 684 and 687). 1919 (1991) (holding that the term "mixture or substance" in 21 U. amendments 123-134. 2006 (see Appendix C. (2) (3) (4) – 164 – .1(b)). 1997 (see Appendix C. 1990 (see Appendix C. amendments 369-371 and 394-396). amendment 509). November 1. September 23. Subsections (b)(10)(C)(ii) and (D) implement.5 milligram per dose would produce offense levels equivalent to those for PCP. amendment 679). amendments 446 and 447). §2D1. in a broader form. amendment 505). or 13. and 711). 2008 (see Appendix C. 1995 (see Appendix C. November 1. Attempt or Conspiracy (a) Base Offense Level (Apply the greatest): (1) 2 plus the offense level from §2D1. amendment 657). 20. amendments 609-611). amendments 620-625). November 1. 484-488. 1987. and 499). 1989 (see Appendix C. 2001 (see Appendix C. amendments 727 and 728). 706. Nonetheless. amendments 514-518). 2009 (see Appendix C. and 21). November 1. this approach does not override the applicability of "mixture or substance" for the purpose of applying any mandatory minimum sentence (see Chapman. 2005 (see Appendix C. amendments 594 and 605). 111 S. amendments 19. November 1.2. amendments 667. or 26. amendments 705.Ct. 2007 (see Appendix C.C. Drug Offenses Occurring Near Protected Locations or Involving Underage or Pregnant Individuals. 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. amendment 715). the instruction to the Commission in section 102 of Public Law 106–310. May 1. November 1. 2000 (see Appendix C. December 16. 302. November 1. At the same time. a controlled substance that comparative assessments indicate is more likely to induce violent acts and ancillary crime than is LSD. November 1.1 applicable to the total quantity of controlled substances involved in the offense. otherwise. November 1. amendment 640). November 1. 1994 (see Appendix C. 2003 (see Appendix C. 2006 (see Appendix C. 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. §5G1. amendment 681). 1993 (see Appendix C. November 1. November 1. March 27.§2D1. May 1. (Treating LSD on a carrier medium as weighing 0. November 1. 2001 (see Appendix C. 1991 (see Appendix C.

November 1. November 1.3.S.5.5 Commentary Statutory Provisions: 21 U. as part of the same course of conduct or common scheme or plan. amendment 447). 1988 (see Appendix C. November 1.C. Background: This section implements the direction to the Commission in Section 6454 of the AntiDrug Abuse Act of 1988.C. §2D1. the amount sold near the protected location). amendment 23). 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. [Deleted] Historical Note: Section 2D1.C. November 1.S. 1991 (see Appendix C. 1987. Continuing Criminal Enterprise. subsections (a)(1) and (a)(2) may result in different offense levels. amendment 319). 2009 GUIDELINES MANUAL §2D1. was deleted by consolidation with §2D1. § 845). the total amount of heroin involved in the offense). 1992 (see Appendix C.2(a). 1989 (see Appendix C. 1987.C. amended effective January 15.3 (Distributing Controlled Substances to Individuals Younger than Twenty-One Years. effective November 1. Attempt or Conspiracy (a) Base Offense Level (Apply the greater): – 165 – . For example. amendment 135).2 effective November 1. sold 5 grams of heroin near a protected location and 10 grams of heroin elsewhere. § 845a).November 1. 861 (formerly 21 U. the offense level from subsection (a)(1) would be level 16 (2 plus the offense level for the sale of 5 grams of heroin. amendment 22). November 1. 1992 (see Appendix C. 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. amended effective November 1. Historical Note: Effective November 1. 2000 (see Appendix C. or Within 1000 Feet of a School or College). Application Note: 1. 1989 (see Appendix C. § 845b). §§ 859 (formerly 21 U. if the defendant. to Pregnant Women.S. effective November 1. amendment 591).S. 1989 (see Appendix C. amendment 135). Amended effective January 15. amendment 421). the offense level from subsection (a)(2) would be level 17 (1 plus the offense level for the sale of 15 grams of heroin. amendment 447). 1987. was deleted by consolidation with the guidelines applicable to the underlying substantive offenses effective November 1. [Deleted] Historical Note: Section 2D1. amendments 136-138). §2D1. 860 (formerly 21 U. See §1B1. 1988 (see Appendix C. 1990 (see Appendix C. §2D1.4.4 (Attempts and Conspiracies).

amendment 66). 1992 (see Appendix C.C. Violations of 21 U. § 848 establishes that a defendant controlled and exercised authority over one of the most serious types of ongoing criminal activity. § 848 will be grouped with other drug offenses for the purpose of applying Chapter Three. Part B (Role in the Offense). Attempt or Conspiracy (a) Base Offense Level: the offense level applicable to the underlying offense. Part D (Multiple Counts). An adjustment from Chapter Three. Under 21 U. amendment 139). Amended effective October 15.C. §2D1. 2009 4 plus the offense level from §2D1. Use of Communication Facility in Committing Drug Offense.S. 4. Application Notes: 1. If as part of the enterprise the defendant sanctioned the use of violence. 3. Historical Note: Effective November 1. a 30-year minimum mandatory penalty for a second conviction.S.1 applicable to the underlying offense. November 1.1(b). 1988 (see Appendix C. or if the number of persons managed by the defendant was extremely large. § 848. 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 §4A1.6. Title 21 U. 1989 (see Appendix C. and a mandatory life sentence for principal administrators of extremely large enterprises.S.S. Commentary (2) Statutory Provision: 21 U. § 848.C. § 848 provides a 20-year minimum mandatory penalty for the first conviction. this guideline provides a minimum base offense level of 38. amendment 447). Part B is not authorized because the offense level of this guideline already reflects an adjustment for role in the offense. an upward departure may be warranted.2(a)(1) and not part of the instant offense. Background: Because a conviction under 21 U. 1987. November 1. – 166 – . 2.S. If the application of the guidelines results in a sentence below the minimum sentence required by statute.5 (1) GUIDELINES MANUAL November 1. Do not apply any adjustment from Chapter Three. the statutory minimum shall be the guideline sentence. 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.C.C. or 38.§2D1.

C. distributor.C. November 1. cocaine (or other Schedule I or II stimulants). radio. PCP.1(c)(17)). a minimum offense level of 8 where the offense involves flunitrazepam (§2D1. methamphetamine. 2009 (see Appendix C. Commentary Statutory Provision: 21 U. In a case involving a large-scale dealer. Unlawful Sale or Transportation of Drug Paraphernalia. Importing. Background: This section covers the use of a communication facility in committing a drug offense. November 1. 2009 GUIDELINES MANUAL §2D1. Amended effective November 1.November 1. Exporting.1 for guidance in determining the scale of the offense.g. Attempt or Conspiracy (a) (b) Base Offense Level: 12 Cross Reference (1) If the offense involved a controlled substance.7. A communication facility includes any public or private instrument used in the transmission of writing. Where the offense level for the underlying offense is to be determined by reference to §2D1. see Application Note 12 of the Commentary to §2D1. November 1. 1990 (see Appendix C. apply §2D1. 1992 (see Appendix C. § 843(b).S. signals. or Trafficking) or §2D2. §2D1. Historical Note: Effective November 1. pictures.1 provides a minimum offense level of 12 where the offense involves heroin (or other Schedule I or II opiates). amendment 447). Note that the Drug Quantity Table in §2D1.1 (Unlawful Manufacturing. LSD (or other Schedule I or II hallucinogens). § 857). amendment 505). or fentanyl analogue (§2D1. 1994 (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.1(c)(14)). telephone. and sound. as appropriate. e. cocaine base. 1987.1 (Unlawful Possession).7 Commentary Statutory Provision: 21 U. and a minimum offense level of 6 otherwise (§2D1.1(c)(16)). or manufacturer.C. fentanyl. Application Note: 1. Application Note: 1.. if the resulting offense level is greater than that determined above. where the offense was not committed for pecuniary – 167 – . amendment 320). an upward departure may be warranted.1. Conversely. signs.S. amendment 737).S. § 863 (formerly 21 U.

For example.2 (Mitigating Role).S. 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. a defendant who arranged for the use of the premises for the purpose of facilitating a drug transaction. a defendant who made telephone calls to facilitate the underlying controlled substance offense. – 168 – .C. a defendant who allowed the use of more than one premises.1 applicable to the underlying controlled substance offense.7 GUIDELINES MANUAL November 1. subsection (a)(2) would not apply to a defendant who possessed a dangerous weapon in connection with the offense.8. §2D1. 1992 (see Appendix C. or otherwise acquired a possessory interest in the premises for a legitimate purpose. do not apply an adjustment under §3B1. Attempt or Conspiracy (a) Base Offense Level: (1) The offense level from §2D1. amendment 397). Commentary Statutory Provision: 21 U. 1987. the offense level shall be 4 levels less than the offense level from §2D1. Historical Note: Effective November 1. rented.g. a downward departure may be warranted. but not greater than level 26. or a defendant who otherwise assisted in the commission of the underlying controlled substance offense. Furthermore. Finally. purchased. amendment 447). § 856. subsection (a)(2) does not apply unless the defendant initially leased. If the defendant had no participation in the underlying controlled substance offense other than allowing use of the premises. Renting or Managing a Drug Establishment. except as provided below.. transportation for the defendant’s personal use). a defendant who guarded the cache of controlled substances. 2009 gain (e.§2D1. Application Note: 1. (2) (b) Special Instruction (1) If the offense level is determined under subsection (a)(2). Amended effective November 1. 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. November 1.1 applicable to the underlying controlled substance offense. 1991 (see Appendix C.

2002 (see Appendix C. If the offense (i) involved the manufacture of amphetamine or methamphetamine. managing.. or using a controlled substance contrary to law (e. Historical Note: Effective November 1. or controlling any building. amendment 646). distributing.9.10 Background: This section covers the offense of knowingly opening. amendment 447). and (ii) created a substantial risk of harm to the life of a minor or an incompetent. §2D1. maintaining.November 1. Specific Offense Characteristic (1) (Apply the greater): (A) If the offense involved the manufacture of amphetamine or methamphetamine. November 1. November 1. 1987. If the resulting offense level is less than level 27. or 20.C. room. Historical Note: Effective November 1. Amended effective November 1. 2002 (see Appendix C. Placing or Maintaining Dangerous Devices on Federal Property to Protect the Unlawful Production of Controlled Substances. Background: This section covers the offense of assembling. increase by 6 levels. Attempt or Conspiracy (a) Base Offense Level: 23 Commentary Statutory Provision: 21 U. amendment 640). placing. (B) – 169 – . §2D1. increase to level 30. 2009 GUIDELINES MANUAL §2D1.S. amendment 394). 1992 (see Appendix C. 1992 (see Appendix C. or maintaining a "booby-trap" on federal property where a controlled substance is being manufactured or distributed. 1991 (see Appendix C.1. 1987. Amended effective November 1. If the resulting offense level is less than level 30. amendments 447 and 448). 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. November 1.g. Endangering Human Life While Illegally Manufacturing a Controlled Substance. increase by 3 levels. § 841(d)(1). or causing to be placed. storing.10. increase to level 27. a "crack house"). or enclosure for the purpose of manufacturing.

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

decrease by 3 levels. or (d)(4). – 171 – . If the defendant. emission. or § 960(d)(2). or attempting to manufacture a controlled substance unlawfully. decrease by 3 levels.C.S. or disposal of a hazardous waste. or (B) the unlawful transportation. storage.C. unless the defendant knew or believed that the listed chemical was to be used to manufacture a controlled substance unlawfully.1 (Unlawful Manufacturing. or (iii) level 38. § 865. (2) (3) (4) (5) (c) Cross Reference (1) If the offense involved unlawfully manufacturing a controlled substance. § 841(c)(2) or (f)(1). or a person for whose conduct the defendant is accountable under §1B1. (d)(3). Exporting. 2009 GUIDELINES MANUAL §2D1.11 level under subsection (d) is (i) level 32. (ii) level 34 or level 36.3 (Relevant Conduct). Importing. If the defendant is convicted under 21 U. treatment. If the defendant is convicted of violating 21 U. Trafficking) if the resulting offense level is greater than that determined above.S. increase by 2 levels. or release into the environment of a hazardous or toxic substance. If the offense involved (A) an unlawful discharge. increase by 2 levels. increase by 2 levels. apply §2D1. distributed a listed chemical through mass-marketing by means of an interactive computer service.November 1. decrease by 4 levels. decrease by 2 levels. increase by 2 levels. (b) Specific Offense Characteristics (1) If a dangerous weapon (including a firearm) was possessed.

At least 40 G but less than 70 G of Ephedrine. PSEUDOEPHEDRINE. At least 40 G but less than 70 G of Pseudoephedrine. At least 6 G but less than 8 G of Pseudoephedrine. At least 70 G but less than 100 G of Pseuodoephedrine. At least 70 G but less than 100 G of Phenylpropanolamine. At least 10 G but less than 40 G of Ephedrine. 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 8 G but less than 10 G of Phenylpropanolamine.11 GUIDELINES MANUAL November 1. At least 8 G but less than 10 G of Ephedrine. At least 1 KG but less than 3 KG of Ephedrine. 2009 (d) EPHEDRINE. At least 300 G but less than 1 KG of Ephedrine. At least 10 G but less than 40 G of Phenylpropanolamine. At least 8 G but less than 10 G of Pseudoephedrine. At least 100 G but less than 300 G of Phenylpropanolamine. At least 100 G but less than 300 G of Ephedrine. 3 KG or more of Phenylpropanolamine. At least 100 G but less than 300 G of Pseudoephedrine. At least 40 G but less than 70 G of Phenylpropanolamine. At least 300 G but less than 1 KG of Phenylpropanolamine. At least 6 G but less than 8 G of Phenylpropanolamine. At least 70 G but less than 100 G of Ephedrine. At least 1 KG but less than 3 KG of Phenylpropanolamine. 3 KG or More of Pseudoephedrine.§2D1. At least 6 G but less than 8 G of Ephedrine. At least 1 KG but less than 3 KG of Pseudoephedrine. AND PHENYLPROPANOLAMINE QUANTITY TABLE* (Methamphetamine and Amphetamine Precursor Chemicals) Quantity (1) 3 KG or more of Ephedrine. At least 300 G but less than 1 KG of Pseudoephedrine. At least 10 G but less than 40 G of Pseudoephedrine.

2009 GUIDELINES MANUAL §2D1. (13) At least 500 MG but less than 1 G of Ephedrine. 200 G or more of Ergonovine. 625 G or more of Nitroethane. At least 1 G but less than 2 G of Phenylpropanolamine. 20 KG or more of Benzyl Cyanide. Base Offense Level Level 30 – 173 – . At least 1 G but less than 2 G of Pseudoephedrine. Less than 500 MG of Pseudoephedrine. (11) At least 2 G but less than 4 G of Ephedrine. (12) At least 1 G but less than 2 G of Ephedrine. 20 KG or more of Ethylamine.2 KG or more of Hydriodic Acid. 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. (14) Less than 500 MG of Ephedrine. At least 500 MG but less than 1 G of Pseudoephedrine. 10 KG or more of Norpseudoephedrine. 320 KG or more of Piperonal. 200 G or more of Methylamine. At least 2 G but less than 4 G of Pseudoephedrine. At least 500 MG but less than 1 G of Phenylpropanolamine.6 KG or more of Propionic Anhydride. At least 4 G but less than 6 G of Phenylpropanolamine. 320 KG or more of Safrole.11 Level 20 (10) At least 4 G but less than 6 G of Ephedrine. 400 G or more of Ergotamine. Less than 500 MG of Phenylpropanolamine. At least 4 G but less than 6 G of Pseudoephedrine. 2. At least 2 G but less than 4 G of Phenylpropanolamine. 10 KG or more of Piperidine. 4-Methylenedioxyphenyl-2-propanone. 1.November 1. 320 KG or more of Isosafrole. 400 KG or more of 3. 20 KG or more of Phenylacetic Acid. 500 KG or more of N-Methylpseudoephedrine. 500 KG or more of N-Methylephedrine.

(2) List I Chemicals Level 28 At least 267 G but less than 890 G of Benzaldehyde. At least 2 KG but less than 6 KG of Ethylamine. 4-Methylenedioxyphenyl-2-propanone.5 G but less than 187. At least 20 G but less than 60 G of Methylamine. At least 40 G but less than 120 G of Ergotamine. At least 120 G but less than 400 G of Ergotamine.11 GUIDELINES MANUAL November 1. At least 20 G but less than 60 G of Ergonovine. At least 6 KG but less than 20 KG of Ethylamine. 1175 KG or more of Acetone. 714 G or more of Red Phosphorus. At least 150 KG but less than 500 KG of N-Methylpseudoephedrine.5 L of Gamma-butyrolactone. or Hypophosphorous Acid. At least 96 KG but less than 320 KG of Isosafrole.2 KG of Hydriodic Acid.2 G or more of Iodine. At least 60 G but less than 200 G of Methylamine. At least 187. 1300 KG or more of Toluene. Level 26 – 174 – . White Phosphorus. List II Chemicals 11 KG or more of Acetic Anhydride. At least 340. At least 3 KG but less than 10 KG of Norpseudoephedrine.§2D1. (3) List I Chemicals At least 89 G but less than 267 G of Benzaldehyde. 10 KG or more of Potassium Permanganate. At least 50 KG but less than 150 KG of N-Methylephedrine. At least 62. At least 3 KG but less than 10 KG of Piperidine. 1075 KG or more of Ethyl Ether. At least 480 G but less than 1. 20 KG or more of Benzyl Chloride. At least 660 G but less than 2.5 G of Nitroethane. At least 50 KG but less than 150 KG of N-Methylpseudoephedrine. 2009 1135. At least 60 G but less than 200 G of Ergonovine. At least 214 G but less than 714 G of Red Phosphorus. At least 96 KG but less than 320 KG of Safrole. At least 6 KG but less than 20 KG of Phenylacetic Acid. At least 6 KG but less than 20 KG of Benzyl Cyanide.7 L but less than 1135. 376. At least 220 G but less than 660 G of Hydriodic Acid. or Hypophosphorous Acid. At least 2 KG but less than 6 KG of Benzyl Cyanide. White Phosphorus. At least 96 KG but less than 320 KG of Piperonal. At least 120 KG but less than 400 KG of 3.6 KG of Propionic Anhydride. 1200 KG or more of Methyl Ethyl Ketone. At least 32 KG but less than 96 KG of Isosafrole. At least 150 KG but less than 500 KG of N-Methylephedrine.5 L or more of Gamma-butyrolactone.5 G but less than 625 G of Nitroethane.

At least 22. At least 117. At least 71 G but less than 214 G of Red Phosphorus. At least 2 KG but less than 6 KG of Benzyl Chloride.2 G of Iodine.8 G but less than 62.3 KG but less than 11 KG of Acetic Anhydride. At least 700 G but less than 1 KG of Norpseudoephedrine. At least 1 KG but less than 3 KG of Piperidine. At least 50 G but less than 71 G of Red Phosphorus.November 1.4 KG but less than 2 KG of Phenylacetic Acid. White Phosphorus.4 KG but less than 32 KG of Isosafrole. At least 2 KG but less than 6 KG of Phenylacetic Acid.6 L of Gamma-butyrolactone.4 KG but less than 32 KG of Safrole. At least 14 G but less than 20 G of Methylamine. List II Chemicals At least 3. or Hypophosphorous Acid. At least 700 G but less than 1 KG of Piperidine.7 L of Gamma-butyrolactone.5 G of Nitroethane. White Phosphorus.5 KG but less than 1075 KG of Ethyl Ether.3 KG of Acetic Anhydride. At least 22. At least 390 KG but less than 1300 KG of Toluene. At least 352. At least 160 G but less than 480 G of Propionic Anhydride. or Hypophosphorous Acid. 4-Methylenedioxyphenyl-2-propanone.4 KG but less than 2 KG of Benzyl Cyanide. At least 322.11 At least 1 KG but less than 3 KG of Norpseudoephedrine.5 KG but less than 1175 KG of Acetone. At least 1. At least 1. At least 43. At least 113. At least 125.6 L but less than 340. At least 3 KG but less than 10 KG of Potassium Permanganate. At least 22. List II Chemicals At least 1. (4) List I Chemicals Level 24 At least 62.3 G but less than 89 G of Benzaldehyde.5 KG but less than 352. 4-Methylenedioxyphenyl-2-propanone. At least 35 KG but less than 50 KG of N-Methylephedrine. At least 28 G but less than 40 G of Ergotamine.5 KG of Acetone. At least 6 KG but less than 20 KG of Benzyl Chloride.4 KG but less than 32 KG of Piperonal. – 175 – .4 KG but less than 2 KG of Ethylamine. At least 1.4 G but less than 376. At least 154 G but less than 220 G of Hydriodic Acid. At least 32 KG but less than 96 KG of Safrole. At least 14 G but less than 20 G of Ergonovine. At least 35 KG but less than 50 KG of N-Methylpseudoephedrine. At least 360 KG but less than 1200 KG of Methyl Ethyl Ketone. At least 112 G but less than 160 G of Propionic Anhydride.5 L but less than 113. At least 40 KG but less than 120 KG of 3.1 KG but less than 3. At least 32 KG but less than 96 KG of Piperonal. At least 28 KG but less than 40 KG of 3. At least 79. 2009 GUIDELINES MANUAL §2D1.

4 KG of Phenylacetic Acid.3 G of Benzaldehyde. At least 87.1 KG of Acetic Anhydride.5 L of Gamma-butyrolactone. At least 4 G but less than 16 G of Ergotamine. At least 20 KG but less than 35 KG of N-Methylephedrine. At least 12. At least 1 KG but less than 3 KG of Potassium Permanganate. At least 29 G but less than 50 G of Red Phosphorus. At least 8 G but less than 14 G of Ergonovine.8 KG of Isosafrole.5 KG of Ethyl Ether.8 G of Iodine. At least 200 G but less than 800 G of Benzyl Cyanide. At least 16 KG but less than 28 KG of 3. At least 8 G but less than 14 G of Methylamine.6 G of Benzaldehyde. At least 82. At least 12. White Phosphorus.4 KG of Isosafrole. 2009 At least 107. At least 400 G but less than 700 G of Piperidine.9 G but less than 35. At least 50. At least 45.4 KG of Benzyl Cyanide.5 KG of Acetone.2 G but less than 87. At least 800 G but less than 1. (5) List I Chemicals Level 22 At least 35.11 GUIDELINES MANUAL November 1. At least 25 G but less than 43. At least 16 G but less than 28 G of Ergotamine.4 KG of Ethylamine. At least 20 KG but less than 35 KG of N-Methylpseudoephedrine. At least 800 G but less than 1. or Hypophosphorous Acid.5 KG of Ethyl Ether.8 KG but less than 22.8 G but less than 125. (6) List I Chemicals At least 8. Level 20 – 176 – . At least 130 KG but less than 390 KG of Toluene. At least 75.8 KG but less than 22. At least 800 G but less than 1. List II Chemicals At least 726 G but less than 1. At least 22 G but less than 88 G of Hydriodic Acid.6 G but less than 62.8 G of Nitroethane. At least 120 KG but less than 360 KG of Methyl Ethyl Ketone. At least 1. At least 88 G but less than 154 G of Hydriodic Acid.2 KG but less than 12. At least 200 G but less than 800 G of Ethylamine.25 KG but less than 117. At least 400 G but less than 700 G of Norpseudoephedrine.25 KG but less than 107.4 G of Iodine.5 KG but less than 322. At least 2 G but less than 8 G of Methylamine.4 KG of Safrole. At least 84 KG but less than 120 KG of Methyl Ethyl Ketone.§2D1.8 KG but less than 22. At least 64 G but less than 112 G of Propionic Anhydride. At least 2 G but less than 8 G of Ergonovine. At least 91 KG but less than 130 KG of Toluene.4 KG but less than 2 KG of Benzyl Chloride.4 KG of Piperonal.4 L but less than 79. At least 700 G but less than 1 KG of Potassium Permanganate. At least 12. At least 3. 4-Methylenedioxyphenyl-2-propanone.

1 L but less than 11.6 G but less than 22 G of Hydriodic Acid. 4-Methylenedioxyphenyl-2-propanone. At least 5 G but less than 6.2 KG but less than 12. At least 3.November 1. – 177 – .4 L of Gamma-butyrolactone. White Phosphorus. At least 80 G but less than 100 G of Piperidine. At least 7 G but less than 29 G of Red Phosphorus. At least 12.11 At least 5 KG but less than 20 KG of N-Methylephedrine.3 G but less than 25 G of Nitroethane. 2009 GUIDELINES MANUAL §2D1. At least 5 KG but less than 20 KG of N-Methylpseudoephedrine. At least 11.6 G but less than 2 G of Ergonovine.4 L of Gamma-butyrolactone.56 KG but less than 3.2 KG but less than 4 KG of 3.4 KG of Benzyl Chloride. At least 6 G but less than 7 G of Red Phosphorus. At least 160 G but less than 200 G of Benzyl Cyanide.56 KG but less than 3.3 G of Nitroethane. At least 3.25 KG of Ethyl Ether. At least 17.2 KG but less than 12. List II Chemicals At least 440 G but less than 726 G of Acetic Anhydride. White Phosphorus. At least 160 G but less than 200 G of Phenylacetic Acid.2 KG of Piperonal. At least 800 G but less than 1.2 KG of Isosafrole. At least 52 KG but less than 91 KG of Toluene. (7) List I Chemicals Level 18 At least 7. At least 47 KG but less than 82. At least 4 KG but less than 5 KG of N-Methylpseudoephedrine. or Hypophosphorous Acid.56 KG but less than 3.1 G but less than 8. At least 48 KG but less than 84 KG of Methyl Ethyl Ketone.25 KG of Acetone. At least 1.5 G but less than 50. At least 12. At least 3. At least 160 G but less than 200 G of Ethylamine.2 G but less than 4 G of Ergotamine. or Hypophosphorous Acid. At least 4 KG but less than 16 KG of 3. 4-Methylenedioxyphenyl-2-propanone.8 KG of Safrole. At least 2. At least 16 G but less than 64 G of Propionic Anhydride. At least 9. At least 400 G but less than 700 G of Potassium Permanganate. At least 4 KG but less than 5 KG of N-Methylephedrine. At least 43 KG but less than 75.9 G of Benzaldehyde. At least 100 G but less than 400 G of Piperidine.8 G but less than 16 G of Propionic Anhydride. At least 200 G but less than 800 G of Phenylacetic Acid.2 G of Iodine.8 KG of Piperonal. At least 1.4 L but less than 45. At least 2. At least 80 G but less than 100 G of Norpseudoephedrine.6 G but less than 2 G of Methylamine. At least 100 G but less than 400 of Norpseudoephedrine.2 KG of Safrole. At least 3. At least 6. At least 2.

6 G but less than 5. At least 120 G but less than 160 G of Phenylacetic Acid. At least 120 G but less than 160 G of Benzyl Cyanide. At least 12 KG but less than 48 KG of Methyl Ethyl Ketone. At least 8.6 G but less than 12. Level 14 – 178 – .6 G of Methylamine.92 KG but less than 2.75 KG of Ethyl Ether.5 G but less than 10 G of Iodine. At least 120 G but less than 160 G of Ethylamine.4 G but less than 3.6 G of Ergonovine. (9) List I Chemicals At least 2. At least 2.75 KG of Acetone. At least 4 G but less than 6 G of Red Phosphorus.75 KG but less than 43 KG of Ethyl Ether. 4. At least 10 G but less than 12.4 KG but less than 11.4 KG but less than 3.6 KG but less than 12 KG of Methyl Ethyl Ketone.56 KG of Isosafrole. or Hypophosphorous Acid. At least 10.8 G of Propionic Anhydride.92 KG but less than 2.11 GUIDELINES MANUAL November 1. At least 60 G but less than 80 G of Piperidine.56 KG of Safrole. At least 9. At least 3 KG but less than 4 KG of N-Methylephedrine.3 G but less than 7.75 KG but less than 47 KG of Acetone.6 KG of Anthranilic Acid.2 G but less than 1. White Phosphorus. At least 1. At least 11. At least 13. 4-Methylenedioxyphenyl-2-propanone. At least 100 G but less than 400 G of Potassium Permanganate.4 KG but less than 13 KG of Toluene. List II Chemicals At least 88 G but less than 110 G of Acetic Anhydride.56 KG of Piperonal. At least 3. At least 10. At least 1.6 KG but less than 10. At least 200 G but less than 800 G of Benzyl Chloride.2 G but less than 17.2 KG of 3.8 L but less than 9. At least 9. At least 1.8 G but less than 5 G of Nitroethane. At least 5. 2009 List II Chemicals At least 110 G but less than 440 G of Acetic Anhydride. At least 1. At least 6. At least 2. At least 60 G but less than 80 G of Norpseudoephedrine.5 G of Iodine. At least 7.1 L of Gamma-butyrolactone.2 G of Ergotamine.8 KG or more of N-Acetylanthranilic Acid. (8) List I Chemicals Level 16 3.7 KG but less than 3. At least 3 KG but less than 4 KG of N-Methylpseudoephedrine.6 KG or more of Anthranilic Acid. At least 80 G but less than 100 G of Potassium Permanganate. At least 13 KG but less than 52 KG of Toluene.6 G of Hydriodic Acid.92 KG but less than 2.§2D1. At least 160 G but less than 200 G of Benzyl Chloride.1 G of Benzaldehyde. At least 1.3 G of Benzaldehyde. At least 9. At least 3.2 G but less than 1.

At least 1.8 KG but less than 2. 4-Methylenedioxyphenyl-2-propanone. At least 800 MG but less than 1. 2009 GUIDELINES MANUAL §2D1. At least 1. At least 5 G but less than 7. Less than 2.4 G of Ergotamine.44 KG but less than 1.6 KG of N-Acetylanthranilic Acid. Less than 3. Less than 2.5 L but less than 6.25 KG but less than 3 KG of N-Methylpseudoephedrine. Less than 1. White Phosphorus.2 G of Ergonovine. At least 80 G but less than 120 G of Ethylamine.92 KG of Piperonal.6 KG of Ethyl Ether.11 At least 80 G but less than 120 G of Benzyl Cyanide.8 G of Hydriodic Acid.6 G of Benzaldehyde.5 G but less than 3. At least 7. At least 6.45 KG but less than 8.8 L of Gamma-butyrolactone. or Hypophosphorous Acid. Less than 800 MG of Ergonovine. At least 1.8 KG but less than 10.4 KG of Toluene. At least 3 G but less than 4 G of Red Phosphorus.92 KG of Safrole. At least 7.November 1. At least 4. Less than 3.5 G of Nitroethane. At least 1. At least 3. At least 2. Less than 800 MG of Methylamine.2 G of Hydriodic Acid. At least 60 G but less than 80 G of Potassium Permanganate.5 G of Iodine.44 KG but less than 1.25 KG but less than 3 KG of N-Methylephedrine.7 KG of Anthranilic Acid.6 KG of Methyl Ethyl Ketone. Less than 8.8 G of Nitroethane. At least 7. At least 80 G but less than 120 G of Phenylacetic Acid.44 KG but less than 1. Less than 2.8 KG of N-Acetylanthranilic Acid.6 KG but less than 4.4 KG of 3.2 KG but less than 9.25 KG of N-Methylephedrine. At least 8.44 KG of Isosafrole. At least 7. List II Chemicals At least 66 G but less than 88 G of Acetic Anhydride.25 KG of N-Methylpseudoephedrine. Less than 80 G of Ethylamine.4 KG of Acetone. Less than 80 G of Phenylacetic Acid. At least 800 MG but less than 1. At least 2.8 G but less than 13. At least 1. At least 2. At least 40 G but less than 60 G of Norpseudoephedrine. Level 12 – 179 – . At least 120 G but less than 160 G of Benzyl Chloride.6 G of Propionic Anhydride. (10) List I Chemicals Less than 2. Less than 1. Less than 40 G of Norpseudoephedrine. At least 40 G but less than 60 G of Piperidine.6 G of Ergotamine.6 G but less than 2. Less than 80 G of Benzyl Cyanide.92 KG of Isosafrole.2 G of Methylamine.05 KG but less than 9.2 G but less than 9.

Less than 4. Commentary Statutory Provisions: 21 U.44 KG of Safrole. or Hypophosphorous Acid.C.2 KG of Methyl Ethyl Ketone. Less than 3 G of Red Phosphorus. (i) aggregate the quantities of all such chemicals.8 KG of Toluene. "Offense involved unlawfully manufacturing a controlled substance or attempting to manufacture a controlled substance unlawfully. 865. (4). as appropriate. pseudoephedrine. (2). 960(d)(1). §§ 841(c)(1). unless it is improbable that the weapon was connected with the offense. 2009 Less than 40 G of Piperidine. (3).S. ______________ *Notes: (A) Except as provided in Note (B). and (ii) determine the base offense level corresponding to the aggregate quantity. Pseudoephedrine. Less than 120 G of Benzyl Chloride. Less than 5 G of Iodine. and Phenylpropanolamine Quantity Table. means that the defendant.2 G of Propionic Anhydride. Application Notes: 1. list I or list II) under subsection (d) or (e) of this guideline.05 KG of Acetone. (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.44 KG of Piperonal.5 L of Gamma-butyrolactone. to calculate the base offense level in an offense that involves two or more chemicals. use the weight of the ephedrine.8 KG of 3. Less than 6. or phenylpropanolamine contained in the tablets. Less than 7. (2). 4-Methylenedioxyphenyl-2-propanone. White Phosphorus. (f)(1). Less than 1.. Less than 60 G of Potassium Permanganate. List II Chemicals Less than 66 G of Acetic Anhydride." as used in subsection (c)(1). regardless of whether the chemicals are set forth in different tables or in different categories (i. (C) In a case involving ephedrine.3 (Relevant 2.e. Less than 7. in calculating the base offense level. The adjustment in subsection (b)(1) should be applied if the weapon was present. "Firearm" and "dangerous weapon" are defined in the Commentary to §1B1. Less than 7. Less than 1. use the quantity of the single chemical that results in the greatest offense level. Less than 1.§2D1. Less than 7.1 (Application Instructions). – 180 – . pseudoephedrine.45 KG of Ethyl Ether. not the weight of the entire tablets.11 GUIDELINES MANUAL November 1. or phenylpropanolamine tablets. or a person for whose conduct the defendant is accountable under §1B1.

2(b). the base offense level would be level 38. list I or list II) under this guideline.1). Note that in determining the scale of the offense under §2D1.11 Conduct). P2P (an immediate precursor) and methylamine (a listed chemical) are used together to produce methamphetamine. 4. – 181 – . if the offense involves two or more chemicals. (i) aggregate the quantities of all such chemicals. and Phenylpropanolamine Quantity Table.— (A) Determining the Base Offense Level for Two or More Chemicals. The offense level for P2P is determined by using §2D1. Ephedrine and hydriodic acid typically are used together in the same manufacturing process to manufacture methamphetamine. Example: The defendant was in possession of 80 grams of ephedrine and 50 grams of phenylpropanolamine.—If the offense involves two or more chemicals each of which is set forth in the Ephedrine. For example.. The base offense level corresponding to that aggregate quantity is level 32. (C) Upward Departure. Importing. or to manufacture one controlled substance by different manufacturing processes. (B) Determining the Base Offense Level for Offenses involving Ephedrine. use the quantity of the single chemical that results in the greatest offense level.—In a case involving two or more chemicals used to manufacture different controlled substances. 3. The offense level for methylamine is determined by using §2D1. Under the grouping rules of §3D1. Pseudoephedrine. the defendant will be convicted of an offense involving a listed chemical covered under this guideline. Pseudoephedrine. the quantity of both the controlled substance and listed chemical should be considered (see Application Note 12 in the Commentary to §2D1. Cases Involving Multiple Chemicals. Example: The defendant was in possession of five kilograms of ephedrine and 300 grams of hydriodic acid.1. and (ii) determine the base offense level corresponding to the aggregate quantity. In this case. completed the actions sufficient to constitute the offense of unlawfully manufacturing a controlled substance or attempting to manufacture a controlled substance unlawfully.11. 2009 GUIDELINES MANUAL §2D1.—Except as provided in subdivision (B). 300 grams of hydriodic acid result in a base offense level of level 26. or Phenylpropanolamine. the counts will be grouped together.e. Exporting. In certain cases.1 (Unlawfully Manufacturing. Determine the offense level under each guideline separately. regardless of whether the chemicals are set forth in different tables or in different categories (i. an aggregate quantity of 130 grams of such chemicals. or Trafficking). The base offense level for each chemical is calculated separately and the chemical with the higher base offense level is used.November 1.1 (P2P is listed in the Drug Equivalency Table under Cocaine and Other Schedule I and II Stimulants (and their immediate precursors)). Five kilograms of ephedrine result in a base offense level of level 38. and a related offense involving an immediate precursor or other controlled substance covered under §2D1. an upward departure may be warranted if the offense level does not adequately address the seriousness of the offense.

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

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

C. November 1. If the offense involved the large-scale manufacture. amendment 520). an upward departure may be warranted. of a large number of persons to induce those persons to purchase a controlled substance. §§ 843(a)(6).3 (Relevant Conduct) involved any discharge. amendment 447). or a person for whose conduct the defendant is accountable under §1B1. 42 U.S. by means of an interactive computer service. for purposes of subsection (b)(3) and this note. §§ 5124. November 1. 2004 (see Appendix C.C. products.§2D1. or importation of prohibited flasks.C. amendment 626). 1995 (see Appendix C. "mass-marketing by means of an interactive computer service" means the solicitation. equipment. and Liability Act. Amended effective November 1. 9603(b). In some cases. § 1319(c). or disposal violation covered by the Resource Conservation and Recovery Act. For example.1 (Restitution) and in fashioning appropriate conditions of supervision under §§5B1." as used in subsection (c)(1). 2009 §2D1. 864.3 (Conditions of Supervised Release). Commentary Statutory Provisions: 21 U. 1991 (see Appendix C. Importing.C. storage. transportation. 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. has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U. exportation. Application Notes: 1. § 6928(d). the Federal Water Pollution Control Act.3 (Relevant Conduct). 4. 42 U. Historical Note: Effective November 1. – 184 – . 2. 2000 (see Appendix C.S. chemicals. 3. "Interactive computer service". transportation. Exporting. or material. 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). (7). completed the actions sufficient to constitute the offense of unlawfully manufacturing a controlled substance or attempting to manufacture a controlled substance unlawfully. distribution.C.S. 1997 (see Appendix C. amendment 558).—For purposes of subsection (b)(3). amendment 371). or the Comprehensive Environmental Response. November 1. § 230(f)(2)).12 GUIDELINES MANUAL November 1. In such cases. release.1 (Unlawful Manufacturing.S. Additionally. Compensation. Subsection (b)(2) applies if the conduct for which the defendant is accountable under §1B1. amendment 667). 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. 33 U. November 1. "Offense involved unlawfully manufacturing a controlled substance or attempting to manufacture a controlled substance unlawfully.3 (Conditions of Probation) and 5D1. Application of Subsection (b)(3). November 1. or Trafficking) if the resulting offense level is greater than that determined above. an upward departure may be warranted. amendment 605). 1992 (see Appendix C. 2001 (see Appendix C. means that the defendant. treatment.S. emission.

2002 (see Appendix C. increase by 6 levels. amendment 646).11 (Unlawfully Distributing. Exporting. amendment 371).14. see §1B1.1(a)(3)(A). Importing. §§ 841(c)(3).C. "The offense level from §2D1.1 (Unlawful Manufacturing.5 (Interpretation of References to Other Offense Guidelines).11" includes the base offense level and any applicable specific offense characteristic or cross reference. §2D1. November 1. Attempt or Conspiracy) applicable to the underlying offense. 1991 (see Appendix C.11 (Unlawfully Distributing. 843(a)(4)(B).14 §2D1. – 185 – . or Trafficking (Including Possession with Intent to Commit These Offenses). (b) Specific Offense Characteristic (1) If §3A1. except that §2D1. Exporting. 1992 (see Appendix C. Structuring Chemical Transactions or Creating a Chemical Mixture to Evade Reporting or Recordkeeping Requirements. and (b)(11) shall not apply. or 6. 2009 GUIDELINES MANUAL §2D1. amendment 447). (f)(1).13. 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. (2) (3) Commentary Statutory Provisions: 21 U.4 (Terrorism) does not apply. Historical Note: Effective November 1. Application Note: 1. Importing. Importing. Narco-Terrorism (a) Base Offense Level: (1) The offense level from §2D1. or The offense level from §2D1.S. Amended effective November 1. (a)(3)(B).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. Presenting False or Fraudulent Identification to Obtain a Listed Chemical. otherwise. Attempt or Conspiracy (a) Base Offense Level (Apply the greatest): (1) The offense level from §2D1. (a)(8).

apply §2P1. § 960a. The typical case addressed by this guideline involves possession of a controlled substance by the defendant for the defendant’s own consumption.14 GUIDELINES MANUAL November 1.1 (Unlawful Manufacturing. an upward departure may be warranted. (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. UNLAWFUL POSSESSION §2D2. Importing. 2009 Commentary Statutory Provision: 21 U. Application Note: 1. correctional facility. Background: Mandatory (statutory) minimum penalties for several categories of cases. an analogue of these. Historical Note: Effective November 1. see Appendix A (Statutory Index). or cocaine base.S. (2) Commentary Statutory Provision: 21 U. * * * * * 2. apply §2D1. If the offense involved possession of a controlled substance in a prison. 2007 (see Appendix C.S. if the substance is any other controlled substance or a list I chemical. flunitrazepam.C.C. § 844(a). For additional statutory provision(s).§2D1. or Trafficking) as if the defendant had been convicted of possession of that mixture or substance with intent to distribute. amendment 700). Exporting. ranging from – 186 – .2 (Providing or Possessing Contraband in Prison). Where the circumstances establish intended consumption by a person other than the defendant.1. if the substance is cocaine. if the substance is heroin or any Schedule I or II opiate. Attempt or Conspiracy (a) Base Offense Level: (1) 8. or 6. or PCP. LSD. Unlawful Possession. or detention facility. or 4.

S. an offense subject to an enhanced penalty under Section 6371 of the Anti-Drug Abuse Act of 1988. are set forth in 21 U.S.C. Amended effective January 15.1(b). 1990 (see Appendix C. November 1. 1988 (see Appendix C. Other cases for which enhanced penalties are provided under Section 6371 of the Anti-Drug Abuse Act of 1988 (e. 1987. November 1. 2009 GUIDELINES MANUAL §2D2. Attempt or Conspiracy (a) Base Offense Level: 8 Commentary Statutory Provision: 21 U. if serious bodily injury resulted. Deception. amendment 24). 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. 1989 (see Appendix C. amendments 556 and 558). September 23. amendment 304). 1995 (see Appendix C. See §5C1. 1997 (see Appendix C. Historical Note: Effective November 1. Part – 187 – . 1992 (see Appendix C.November 1. §2D2. § 843(a)(3). § 3553(f) provides an exception to the applicability of mandatory minimum sentences in certain cases. or 21.3. apply Chapter Three. possession of more than one gram of a mixture or substance containing cocaine base) are to be sentenced in accordance with §5G1.C..1 for possession of more than five grams of a mixture or substance containing cocaine base. November 1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases). Historical Note: Effective November 1. that 18 U.1(b). Special Instruction: (1) If the defendant is convicted of a single count involving the death or serious bodily injury of more than one person. or Subterfuge. 1987. Fraud. Section 2D2. See §5G1. amendment 509). When a mandatory minimum penalty exceeds the guideline range. amendment 321). §2D2. amendment 514). amendment 447). 1994 (see Appendix C.S. otherwise. for a person with one prior conviction. Amended effective November 1. or 13.3 fifteen days’ to five years’ imprisonment. for a person with two or more prior convictions. § 844(a). Note. if death resulted. possession of more than three grams of a mixture or substance containing cocaine base.g. 1992 (see Appendix C. however.C. November 1. November 1.2. Acquiring a Controlled Substance by Forgery. the mandatory minimum becomes the guideline sentence.1(b)(1) provides a cross reference to §2D1. amendment 447).

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

amendment 481). November 1. – 189 – . 1993 (see Appendix C. effective November 1. (10). amendment 447).4. 954. §2D3.2 effective November 1. 1990 (see Appendix C. 1987. amendment 359) and November 1. was deleted by consolidation with §2D3.3 (Illegal Use of Registration Number to Distribute or Dispense a Controlled Substance to Another Registrant or Authorized Person.5 (Violation of Recordkeeping or Reporting Requirements for Listed Chemicals and Certain Machines. amendment 481).2 effective November 1. Historical Note: Effective November 1. November 1.2 effective November 1. §§ 842(a)(2). 1992 (see Appendix C. was deleted by consolidation with §2D3. (9). 1991 (see Appendix C. effective November 1. For additional statutory provision(s). Attempt or Conspiracy). Amended effective November 1. 1987. 1992 (see Appendix C. 1992 (see Appendix C. [Deleted] Historical Note: Section 2D3.S. amendment 481).5. amendment 447). 1993 (see Appendix C. 1992 (see Appendix C. 961. Attempt or Conspiracy). §2D3. amended effective November 1. 1991 (see Appendix C.November 1.3. 1991 (see Appendix C. 1993 (see Appendix C. 1995 (see Appendix C. amendment 447). 1987. Attempt or Conspiracy). amendment 421) and November 1. [Deleted] Historical Note: Section 2D3.5 Commentary Statutory Provisions: 21 U. [Deleted] Historical Note: Section 2D3. amendment 534). 2009 GUIDELINES MANUAL §2D3. effective November 1. amendment 421). amended effective November 1. (b). amendment 371).C. amended effective November 1. see Appendix A (Statutory Index). November 1. §2D3. was deleted by consolidation with §2D3. 1993 (see Appendix C. amendment 481). amendment 447).4 (Illegal Transfer or Transshipment of a Controlled Substance.

or the offense level applicable to the underlying racketeering activity.. Commentary Statutory Provisions: 18 U. and D to both (a)(1) and (a)(2). 4. Where there is more than one underlying offense. treat each underlying offense as if contained in a separate count of conviction for the purposes of subsection (a)(2). apply Chapter Three. C.1.§2E1. §2E1. – 190 – . This treatment is designed to produce a result consistent with the distinction between 2. If the underlying conduct violates state law. 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. Historical Note: Effective November 1.1 GUIDELINES MANUAL November 1. B. §§ 1962. 19). Where such previously imposed sentence resulted from a conviction prior to the last overt act of the instant offense. To determine whether subsection (a)(1) or (a)(2) results in the greater offense level. the alternative minimum base offense level is to be used. treat as a prior sentence under §4A1.S. 1963. Application Notes: 1. 2009 PART E . 1987. The offense level usually will be determined by the offense level of the underlying conduct. this subpart covers a wide variety of criminal conduct.e.2(a)(1) and not as part of the instant offense. If the offense level for the underlying racketeering activity is less than the alternative minimum level specified (i. 3. Parts A.C. the offense level corresponding to the most analogous federal offense is to be used. Unlawful Conduct Relating to Racketeer Influenced and Corrupt Organizations (a) Base Offense Level (Apply the greater): (1) (2) 19.OFFENSES INVOLVING CRIMINAL ENTERPRISES AND RACKETEERING 1. Use whichever subsection results in the greater offense level. RACKETEERING Introductory Commentary Because of the jurisdictional nature of the offenses included.

C. 6). Amended effective June 15. If the offense level for the underlying conduct is less than the alternative minimum base offense level specified (i. If the underlying conduct violates state law. Application Notes: 1. §2E1. treat each underlying offense as if contained in a separate count of conviction for the purposes of subsection (a)(2). Interstate or Foreign Travel or Transportation in Aid of a Racketeering Enterprise (a) Base Offense Level (Apply the greater): (1) (2) 6. or the offense level applicable to the underlying crime or racketeering activity. If this treatment produces an anomalous result in a particular case. Historical Note: Effective November 1. – 191 – . Amended effective June 15. 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. November 1. B.2.3.November 1. amendment 142). Use whichever subsection results in the greater offense level. Commentary Statutory Provision: 18 U.3 the instant offense and criminal history found throughout the guidelines. amendment 27). and D to both (a)(1) and (a)(2). 3. 1988 (see Appendix C.. the offense level corresponding to the most analogous federal offense is to be used. a guideline departure may be warranted. amendment 26).e. 2009 GUIDELINES MANUAL §2E1. Where there is more than one underlying offense. §2E1. 1987. 2. 1989 (see Appendix C. Violent Crimes in Aid of Racketeering Activity (a) Base Offense Level (Apply the greater): (1) (2) 12. § 1952. 1988 (see Appendix C. apply Chapter Three. 1987. To determine whether subsection (a)(1) or (a)(2) results in the greater offense level. the alternative minimum base offense level is to be used.C.S. Parts A. Historical Note: Effective November 1.

1989 (see Appendix C. 2B3. § 1952A). 1987.1. Use of Interstate Commerce Facilities in the Commission of Murder-For-Hire (a) Base Offense Level (Apply the greater): (1) (2) 32. amendment 145). 1993 (see Appendix C. – 192 – . the offense level corresponding to the most analogous federal offense is to be used. § 1952B).5 (Hobbs Act Extortion or Robbery). The maximum term of imprisonment authorized by statute ranges from three years to life imprisonment. §2E1. 1990 (see Appendix C..4. If the underlying conduct violates state law.3. If the underlying conduct violates state law. Background: The conduct covered under this section ranges from threats to murder. §2E1. 1989 (see Appendix C. amendment 449). Background: This guideline and the statute to which it applies do not require that a murder actually have been committed. 1987.5. Amended effective November 1. § 1958 (formerly 18 U. Application Note: 1.S. November 1.3 GUIDELINES MANUAL November 1. amendment 143). and 2C1. 1992 (see Appendix C. Amended effective November 1.S.S. the offense level corresponding to the most analogous federal offense is to be used. or the offense level applicable to the underlying unlawful conduct.2. Commentary Statutory Provision: 18 U.§2E1. Historical Note: Effective November 1.C. amendment 481). the alternative minimum base offense level is to be used. was deleted by consolidation with §§2B3.1 effective November 1. Historical Note: Effective November 1.e. amendment 311). Application Notes: 1. If the offense level for the underlying conduct is less than the alternative minimum base offense level specified (i. 2. § 1959 (formerly 18 U. 1989 (see Appendix C. November 1.C. 1987.C. amendment 144).C. 2009 Commentary Statutory Provision: 18 U. amended effective November 1. 2B3. effective November 1.S. [Deleted] Historical Note: Section 2E1. 12).

(3) (A) If any person was abducted to facilitate commission of the offense or to facilitate escape. increase by 4 levels. increase by 2 levels.November 1. 2009 GUIDELINES MANUAL §2E2. Making or Financing an Extortionate Extension of Credit. or if a dangerous weapon (including a firearm) was otherwise used. that the combined increase from (1) and (2) shall not exceed 9 levels. add 3 levels. EXTORTIONATE EXTENSION OF CREDIT §2E2. (C) (2) If any victim sustained bodily injury. or if any person was physically restrained to facilitate commission of the offense or to facilitate escape. 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).1. add 5 levels. (E) Provided. increase by 3 levels. however.1 * * * * * 2. or If the degree of injury is between that specified in subdivisions (B) and (C). or if a dangerous weapon (including a firearm) was brandished or possessed. (B) – 193 – . 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. increase by 4 levels.

1 (First Degree Murder). Amended effective November 1.C. November 1.1 (Application Instructions)." "abducted. Commentary Statutory Provisions: 18 U. – 194 – . Historical Note: Effective November 1. amendment 398). 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. 1991 (see Appendix C. The adjustments in Chapter Three. apply §2A1.2 (Extortion by Force or Threat of Injury or Serious Damage).S. the guideline does not include the amount of money involved because the amount of money in such cases is often difficult to determine. Other enhancements parallel those in §2B3." "dangerous weapon. amendments 146-148). 2000 (see Appendix C. These "loan-sharking" offenses typically involve threats of violence and provide economic support for organized crime. Part B (Role in the Offense) are particularly relevant in providing a measure of the scope of the offense and the defendant’s participation. §§ 892-894." "bodily injury. 1989 (see Appendix C. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States." "serious bodily injury. November 1. 1987." "permanent or life-threatening bodily injury. See also Commentary to §2B3. amendment 479). 2009 If a victim was killed under circumstances that would constitute murder under 18 U. amendment 601). * * * * * 3.§2E2. GAMBLING Introductory Commentary This subpart covers a variety of proscribed conduct. Background: This section refers to offenses involving the making or financing of extortionate extensions of credit. Historical Note: Effective November 1. Application Notes: 1. Definitions of "firearm.C. 2." and "physically restrained" are found in the Commentary to §1B1." "brandished.1 (c) Cross Reference (1) GUIDELINES MANUAL November 1.S. In addition. November 1. 1987.2 (Extortion by Force or Threat of Injury or Serious Damage) regarding the interpretation of the specific offense characteristics. 1993 (see Appendix C." "otherwise used. or the collection of loans by extortionate means.

1993 (see Appendix C. see Appendix A (Statutory Index). 1993 (see Appendix C. amendment 481). Definition. or 10. 2008 (see Appendix C. [Deleted] Historical Note: Section 2E3.1 effective November 1. § 2156. §§ 1082. 1306.1 effective November 1.—For purposes of this guideline: "Animal fighting venture" has the meaning given that term in 7 U. §§ 1172-1175.S. for example. otherwise. 2009 GUIDELINES MANUAL §2E3. Historical Note: Effective November 1. if the offense involved an animal fighting venture. 1993 (see Appendix C. or to facilitate. 2007 (see Appendix C. For additional statutory provision(s).November 1. amendment 481).2. 1301-1304. or 6. effective November 1.3 §2E3. 31 U.2 (Transmission of Wagering Information). 1953. was deleted by consolidation with §2E3. Application Notes: 1.3.C.—If the offense involved extraordinary cruelty to an animal that resulted in. if the offense was (A) engaging in a gambling business.S. Upward Departure Provision. a commercial gambling operation. (B) transmission of wagering information. amendment 721).S. maiming or death to an animal. effective November 1. § 5363. an upward departure may be warranted. amendment 703). 1955. was deleted by consolidation with §2E3.C. Animal Fighting Offenses (a) Base Offense Level: (Apply the greatest) (1) 12. 1987. or (C) committed as part of. November 1.C.3 (Other Gambling Offenses). (2) (3) Commentary Statutory Provisions: 7 U. 2.S.C. Amended effective November 1. § 2156(g). §2E3. amendment 481). 1511. §2E3.C. 1987.1. 15 U. [Deleted] Historical Note: Section 2E3. Gambling Offenses.S. November 1. 18 U. * * * * * – 195 – . 1987.

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

§2E5.000. Prohibited Payments or Lending of Money by Employer or Agent to Employees. Specific Offense Characteristics (1) If the defendant was a fiduciary of the benefit plan or labor organization.Organizations (1) In lieu of the pecuniary loss under subsection (a)(3) of §8C2. (2) (c) Special Instruction for Fines . or (B) exceeded $5. Property Destruction. use the greatest of: (A) the value of the unlawful payment.000 but did not exceed $5. – 197 – . and Fraud) corresponding to that amount. or (C) if a bribe.C.S. increase by 2 levels. (B) if a bribe.November 1.S. Accepting. 2009 GUIDELINES MANUAL §2E5.1. or Soliciting a Bribe or Gratuity Affecting the Operation of an Employee Welfare or Pension Benefit Plan. if a bribe. or 6. "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. Application Notes: 1. Historical Note: Effective November 1. Representatives. § 186. increase by 1 level.000. increase by the number of levels from the table in §2B1. Commentary Statutory Provisions: 18 U. § 1954. or Labor Organizations (a) Base Offense Level: (1) (2) (b) 10. the value of the benefit received or to be received in return for the unlawful payment. the consequential damages resulting from the unlawful payment. if a gratuity.C. Offering. 29 U.1 (Theft.4 (Base Fine). 1987. whichever is greater (A) exceeded $2.1 bribery due to the particular vulnerability to exploitation of the organizations covered by this subpart. If the value of the prohibited payment or the value of the improper benefit to the payer.

1 effective November 1.1 (Offering. and November 1. The seriousness of the offense is determined by several factors. 1989 (see Appendix C. including the value of the bribe or gratuity and the magnitude of the loss resulting from the transaction. 2009 "Gratuity" refers to the offer or acceptance of an unlawful payment other than a bribe. [Deleted] Historical Note: Section 2E5. Extortion Under Color of Official Right. 2001 (see Appendix C. amendment 617). effective November 1. or (C) an obstruction of justice offense. Fraud Involving the Deprivation of the Intangible Right to Honest Services of Public Officials.1(b)(1) applies.§2E5. or labor organizations. Giving. amendment 666). November 1. 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 28).1 2. or If the offense was committed to facilitate or conceal (A) an offense involving a theft. or who has any discretionary authority or responsibility in the administration of such plan. 2004 (see Appendix C. amendment 399). False Statements and Concealment of Facts in Relation to Documents Required by the Employee Retirement Income Security Act.S.C.2. 5. Accepting.1 (Offering. Amended effective November 1. November 1. 1993 (see Appendix C. Historical Note: Effective November 1. amendment 422).3. (B) an offense involving a bribe or a gratuity. "Fiduciary of the benefit plan" is defined in 29 U. or an embezzlement. 1989 (see Appendix C. Destruction and Failure to Maintain Corporate Audit Records (a) Base Offense Level (Apply the greater): (1) (2) 6. 1987. Conspiracy to Defraud by Interference with Governmental Functions). "Value of the improper benefit to the payer" is explained in the Commentary to §2C1. November 1. 3. amendment 481). Background: This section covers the giving or receipt of bribes and other unlawful gratuities involving employee welfare or pension benefit plans. §2E5. Property Destruction. 1991 (see Appendix C. § 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 (Theft or Embezzlement from Employee Pension and Welfare Benefit Plans). 1987. amendment 481). November 1. a fraud. amendment 149). Soliciting. or Soliciting a Bribe or Gratuity Affecting the Operation of – 198 – . 1988 (see Appendix C. apply §2B1. do not apply the adjustment at §3B1. or Receiving a Bribe. amendment 150). November 1. 4. §2E5. was deleted by consolidation with §2B1. Failure to Maintain and Falsification of Records Required by the Labor Management Reporting and Disclosure Act. and Fraud). If the adjustment for a fiduciary at §2E5. amended effective June 15. GUIDELINES MANUAL November 1. or has any authority or responsibility to do so.1 (Theft. 1993 (see Appendix C. 1991 (see Appendix C.3 (Abuse of Position of Trust or Use of Special Skill). §2E5.

§2E5. amendment 29) and November 1. 1987. was deleted by consolidation with §2E5. amended effective November 1. §2E5. as applicable. Background: This section covers the falsification of documents or records relating to a benefit plan covered by ERISA. Prohibited Payments or Lending of Money by Employer or Agent to Employees. 1989 (see Appendix C. 1987. [Deleted] Historical Note: Section 2E5. Where a violation under this section occurs in connection with another offense. 1987. amendment 152). Such violations sometimes occur in connection with the criminal conversion of plan funds or schemes involving bribery or graft. amendment 151).S. the offense level is determined by reference to the offense facilitated by the false statements or documents.3 effective November 1. amended effective June 15. amendment 647). 1988 (see Appendix C. Commentary Statutory Provisions: 18 U. 461. 1993 (see Appendix C. §§ 439. Representatives. It also covers failure to maintain proper documents required by the LMRDA or falsification of such documents. [Deleted] Historical Note: Section 2E5. 2003 (see Appendix C. 1993 (see Appendix C. For additional statutory provision(s).5 (Failure to Maintain and Falsification of Records Required by the Labor Management Reporting and Disclosure Act). 1989 (see Appendix C.6 an Employee Welfare or Pension Benefit Plan. Historical Note: Effective November 1. was deleted by consolidation with §2E5. amendment 653). or Labor Organizations). see Appendix A (Statutory Index). 29 U.2 (Obstruction of Justice). amendment 481). or Labor Organizations).C. 1131.5. amended effective November 1. 1520. 1989 (see Appendix C. 2003 (see.4.4 (Embezzlement or Theft from Labor Unions in the Private Sector). – 199 – . 1993 (see Appendix C. 1991 (see Appendix C.S. amendment 153). was deleted by consolidation with §2B1. November 1. amendment 422). amendment 481). effective November 1. January 25. 2009 GUIDELINES MANUAL §2E5. Appendix C. [Deleted] Historical Note: Section 2E5. 1993 (see Appendix C. §2E5.November 1. effective November 1.1 effective November 1. amendment 481). amendment 481). Representatives.6. effective November 1. November 1. 1987. or §2J1. Amended effective November 1. §§ 1027.C.1 effective November 1.6 (Prohibited Payments or Lending of Money by Employer or Agent to Employees.

amendments 577 and 587). was deleted by consolidation with §2B1.1 effective November 1. amendment 470). 1992 (see Appendix C. amendment 617).2 effective November 1. and 597).1 GUIDELINES MANUAL November 1. 1989 (see Appendix C. November 1. [Deleted] Historical Note: Section 2F1. November 1.1 and 2F1. effective November 1. 596.1 (Fraud and Deceit. November 1. amendments 364 and 393).1 effective November 1. 2000 (see Appendix C. 2009 PART F . November 1. 1987. effective November 1. amendment 317). §2F1. 1991 (see Appendix C. – 200 – . amendment 551). effective November 1. §2F1. 1998 (see Appendix C. 1993 (see Appendix C. November 1. [Deleted] Historical Note: Section 2F1. amendment 617).2 (Insider Trading). 2001 (see Appendix C.2. November 1. was deleted by consolidation with §2B1. 1987. November 1. amendments 154-156 and 303). Forgery.§2F1. amendments 481 and 482). 1987.[DELETED] Historical Note: The heading to Part F . amendment 30). amended effective June 15.1. amendment 617). 1990 (see Appendix C. amendment 513). 1995 (see Appendix C. 1988 (see Appendix C. amendments 595. was deleted due to the deletion of §§2F1.Offenses Involving Fraud or Deceit. November 1. Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States). 2001 (see Appendix C. November 1. 1997 (see Appendix C. 2001 (see Appendix C.

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

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

or 24. 2007 (see Appendix C. amendments 157 and 158). otherwise. amended effective November 1.C. 1991 (see Appendix C. amendment 612). Upward Departure Provision. § 1591(b)(1).S. 2009 (see Appendix C.S. amendment 444). 1987. 2002 (see Appendix C. amendment 538). 1989 (see Appendix C. §2G1. amendment 641). Consequently. was deleted by consolidation with §2G1. 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. Amended effective November 1. November 1. multiple counts involving more than one victim are not to be grouped together under §3D1. a commercial sex act or prohibited sexual conduct is to be treated as a separate victim.S. each person transported. amendments 159 and 160).3. amendment 538). 2004 (see Appendix C.November 1. Use of Interstate Facilities to Transport Information about a Minor (a) Base Offense Level: (1) (2) (3) 34. if the defendant was convicted under 18 U. 2009 GUIDELINES MANUAL §2G1.—For the purposes of Chapter Three. if the defendant was convicted under 18 U. the sexual act. 28.2 (Transportation of a Minor for the Purpose of Prostitution or Prohibited Sexual Conduct). November 1. May 1. Special Instruction at Subsection (d)(1). 1996 (see Appendix C. amendment 400).—If the offense involved more than ten victims. or (ii) engaging in. November 1.2 (Groups of Closely Related Counts). § 2422(b) or § 2423(a).2. 1987. if the defendant was convicted under 18 U. amendment 737). Sex Trafficking of Children. amendment 701). amendment 664).3 than by threatening or placing the victim in fear that any person will be subject to death. amendment 322).C. Historical Note: Effective November 1. November 1. an upward departure may be warranted. effective November 1. In addition. 2001 (see Appendix C. November 1. 5. induced. or travel to engage in. 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. 6. whether specifically cited in the count of conviction. or coerced to engage in. and November 1.C. November 1. or communicating unwillingness to engage in. Promoting a Commercial Sex Act or Prohibited Sexual Conduct with a Minor. Part D (Multiple Counts). persuaded. 1990 (see Appendix C. or causing another person to engage in. amendment 323). 1996 (see Appendix C. 1992 (see Appendix C. November 1. Transportation of Minors to Engage in a Commercial Sex Act or Prohibited Sexual Conduct. or kidnapping). amendment 627). serious bodily injury. November 1. 1990 (see Appendix C. 2001 (see Appendix C. November 1.1 effective November 1. [Deleted] Historical Note: Section 2G1. § 1591(b)(2). amendment 592). 30. enticed. 2000 (see Appendix C. §2G1. 1989 (see Appendix C. Travel to Engage in Commercial Sex Act or Prohibited Sexual Conduct with a Minor. November 1. (4) – 203 – . each such victim shall be treated as if contained in a separate count of conviction.

induce. if the resulting offense level is greater than that determined above. increase by 2 levels. or facilitate the travel of. a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct. or legal guardian of the minor. or (B) subsection (a)(3) or (a)(4) applies and the offense involved a commercial sex act. If (A) the offense involved the knowing misrepresentation of a participant’s identity to persuade.C. increase by 2 levels. increase by 2 levels. entice. § 2241 or § 2242. If (A) subsection (a)(3) or (a)(4) applies. Custodian Permitting Minor to Engage in Sexually Explicit Conduct. 2009 Specific Offense Characteristics (1) If (A) the defendant was a parent.§2G1. induce. if the resulting offense level is greater than that determined above. or knowingly engaging in a sexual act with a minor who had not (2) (3) – 204 – . the minor to engage in prohibited sexual conduct. if the resulting offense level is greater than that determined above. apply §2G2. or (B) entice. If the offense involved the use of a computer or an interactive computer service to (A) persuade. permitting. (2) (3) (4) (5) (c) Cross References (1) If the offense involved causing. or facilitate the travel of.1 (Sexually Exploiting a Minor by Production of Sexually Explicit Visual or Printed Material. apply §2A1.1 (First Degree Murder). If (A) the offense involved the commission of a sex act or sexual contact. increase by 2 levels. or (B) the minor was otherwise in the custody. care. relative.S. apply §2A3.S.3 (b) GUIDELINES MANUAL November 1.C. coerce. coerce. encourage. Advertisement for Minors to Engage in Production). a minor to engage in prohibited sexual conduct. Attempt to Commit Criminal Sexual Abuse). or offering or seeking by notice or advertisement. or (B) a participant otherwise unduly influenced a minor to engage in prohibited sexual conduct. transporting. If the offense involved conduct described in 18 U. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States. 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. entice.1 (Criminal Sexual Abuse. offer. and (B) the offense involved a minor who had not attained the age of 12 years. increase by 8 levels. or supervisory control of the defendant. If a minor was killed under circumstances that would constitute murder under 18 U. or solicit a person to engage in prohibited sexual conduct with the minor.

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

The misrepresentation to which the enhancement in subsection (b)(2)(A) may apply includes misrepresentation of a participant’s name. as long as the misrepresentation was made with the intent to persuade. or status. (B) 3.3 (Abuse of Position of Trust or Use of Special Skill). Care. Accordingly. 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. In determining whether to apply this enhancement. some degree of undue influence can be presumed because of the substantial difference in age between the participant and the minor.— (A) Misrepresentation of Participant’s Identity. use of a computer screen name.—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 – . or supervisory control of the minor. do not apply §3B1. Subsection (b)(2)(A) is intended to apply only to misrepresentations made directly to a minor or to a person who exercises custody. coerce.—The enhancement in subsection (b)(2)(A) applies in cases involving the misrepresentation of a participant’s identity to persuade. a minor to engage in prohibited sexual conduct. Accordingly. there shall be a rebuttable presumption that subsection (b)(2)(B) applies. 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. GUIDELINES MANUAL November 1. or facilitate the travel of. (B) Undue Influence. gender. whether temporarily or permanently. coerce. age. occupation. Application of Subsection (b)(2). a minor to engage in prohibited sexual conduct. teachers. baby-sitters.— (A) Custody. without such intent. entice. In such a case. or Supervisory Control. induce. entice.§2G1. However. 4. care.3 2. 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.—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. In a case in which a participant is at least 10 years older than the minor. 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. The voluntariness of the minor’s behavior may be compromised without prohibited sexual conduct occurring. or facilitate the travel of. For example.—In determining whether subsection (b)(2)(B) applies. or other temporary caretakers are among those who would be subject to this enhancement. Application of Subsection (b)(3). day care providers. Inapplicability of Chapter Three Adjustment. would not be a sufficient basis for application of the enhancement. induce. 2009 Application of Subsection (b)(1).

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

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

2251(d)(1)(B).C. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States.1 involved in the offense. care. including possession with intent to distribute. increase by 2 levels. § 2256. (6) If. apply §2A1. "Interactive computer service" has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U. or supervisory control of the defendant. the offense involved (A) the knowing misrepresentation of a participant’s identity to persuade. § 1030(e)(1).November 1. § 230(f)(2)). if the resulting offense level is greater than that determined above. production. 2009 GUIDELINES MANUAL §2G2. 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.C. 2260(a).1 (First Degree Murder). 2251(a)-(c). Part D (Multiple Counts) shall be applied as if the exploitation of each minor had been contained in a separate count of conviction. §§ 1591. related to the transfer of material involving the sexual exploitation of a minor. coerce. increase by 2 levels.S. "Distribution" means any act. Commentary Statutory Provisions: 18 U. – 209 – . (c) Cross Reference (1) If the victim was killed in circumstances that would constitute murder under 18 U. induce. as defined in 18 U. and transportation. Accordingly. induce. Chapter Three. (d) Special Instruction (1) If the offense involved the exploitation of more than one minor.S. entice. or facilitate the travel of.C. or facilitate the travel of. for the purpose of producing sexually explicit material or for the purpose of transmitting such material live.—For purposes of this guideline: "Computer" has the meaning given that term in 18 U.C. transmission.C. entice. a minor to engage sexually explicit conduct.S. or to otherwise solicit participation by a minor in such conduct. Definitions. or (B) the use of a computer or an interactive computer service to (i) persuade. Application Notes: 1. a minor to engage in sexually explicit conduct. coerce. or (ii) solicit participation with a minor in sexually explicit conduct. "Material" includes a visual depiction. advertisement.S.S. or if the minor was otherwise in the custody.

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

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

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

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

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

Selling or Buying of Children for Use in the Production of Pornography (a) Base Offense Level: 38 Commentary – 215 – . 2009 (see Appendix C. an upward departure may be warranted. inducing. using. 2001 (see Appendix C. (ii) Each video. 2000 (see Appendix C.November 1. Historical Note: Effective November 1. amendment 31).C. November 1. 7.3. § 2252A(a)(7)). enticing. § 2256(2). amendment 372).—"Sexually explicit conduct" has the meaning given that term in 18 U. 2004 (see Appendix C. permitting. §2G2. April 30. (B) 6. Background: Section 401(i)(1)(C) of Public Law 108–21 directly amended subsection (b) to add subdivision (7). Application of Subsection (c)(1). 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. persuading. 1997 (see Appendix C. 1987. Amended effective June 15.— (A) In General. November 1. amendment 325). 2009 GUIDELINES MANUAL §2G2. 1988 (see Appendix C. November 1. amendments 733 and 736).—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. amendment 575). November 27. Upward Departure Provision. effective April 30.C. November 1. or similar visual depiction shall be considered to have 75 images. coercing. 5. 1991 (see Appendix C.. November 1. amendment 537). November 1.—If the offense involved material that is an adapted or modified depiction of an identifiable minor (e.g.3 images substantially underrepresents the number of minors depicted. 2003. 2003 (see Appendix C. amendment 664). November 1. amendment 435). a case in which the defendant is convicted under 18 U. 1996 (see Appendix C. If the length of the visual depiction is substantially more than 5 minutes.—The cross reference in subsection (c)(1) is to be construed broadly and includes all instances where the offense involved employing. an upward departure may be warranted. November 1. amendment 617).S. or offering or seeking by notice or advertisement. Definition. an upward departure may be warranted. 2003 (see Appendix C. amendment 592). 1990 (see Appendix C. video-clip. transporting. 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. November 1. movie. the term "material involving the sexual exploitation of a minor" includes such material. 1991 (see Appendix C.S. amendment 661). Cases Involving Adapted or Modified Depictions. amendment 649). In addition.

§ 7704(d). amendment 372). § 2251A. amendment 649). §2G2. Amended effective November 27. Advertising. apply §2G2. Historical Note: Effective November 1. Amended effective November 1. amendment 736). amendment 664). November 1. Transporting. 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. amendment 537). 2006 (see Appendix C. Receiving.C. Recordkeeping Offenses Involving the Production of Sexually Explicit Materials.2 (Trafficking in Material Involving the Sexual Exploitation of a Minor. November 1.§2G2. advertising. amendment 436).5. 1991 (see Appendix C. amendment 592). or offering or seeking by notice or advertisement.S. apply §2G2. transporting. 2257A. or possessing material involving the sexual exploitation of a minor with intent to traffic). 2000 (see Appendix C. amendment 689). 1991 (see Appendix C. §§ 2257. was deleted by consolidation with §2G2. (2) Commentary Statutory Provisions: 15 U.2 effective November 1.4. §2G2. a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct.S. amendment 372).C. 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. November 1. transporting. 2007 (see Appendix C.S. amendment 162). 1991 (see Appendix C. § 2251A is thirty years imprisonment. Historical Note: Effective November 1.3 GUIDELINES MANUAL November 1. 1989 (see Appendix C.1 (Sexually Exploiting a Minor by Production of Sexually Explicit Visual or Printed Material. [Deleted] Historical Note: Effective November 1. or Possessing Material Involving the Sexual Exploitation of a Minor with Intent to Traffic). April 30. Custodian Permitting Minor to Engage in Sexually Explicit Conduct. Amended effective November 1.S. 18 U.C. permitting. Background: The statutory minimum sentence for a defendant convicted under 18 U. 1996 (see Appendix C. Advertisement for Minors to Engage in Production). 2004 (see Appendix C. – 216 – . amendment 701). 2009 Statutory Provision: 18 U. 2009 (see Appendix C. 2003 (see Appendix C.C.

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

Historical Note: Effective November 1. 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. or in a case in which the ability of the minor to appraise or control conduct was substantially impaired by drugs or alcohol.3 (Abuse of Position of Trust or Use of Special Skill). or expectation of receipt. or Transporting Obscene Matter. do not apply §3B1.—If the enhancement under subsection (b)(2) applies.S. but not for pecuniary gain.—For purposes of subsection (b)(3). a drug. for example. "conduct described in 18 U. This provision would apply. * * * * * 3.6 GUIDELINES MANUAL November 1. Property Destruction. increase by 5 levels. entice.§2G2. (iii) rendering the minor unconscious. Transferring Obscene Matter to a Minor.C. Application of Subsection (b)(3). or other similar substance and thereby substantially impairing the ability of the minor to appraise or control conduct. amendment 701). 2007 (see Appendix C. Distribution to a minor that was intended to persuade.1 (Theft. or coerce the minor to engage in any illegal activity. induce. 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 without the knowledge or permission of the minor. increase by 5 levels. Mailing. serious bodily injury. (B) Inapplicability of Chapter Three Adjustment. Distribution to a minor. of a thing of value. § 2241(a) or (b)" is: (i) using force against the minor. increase by the number of levels from the table in §2B1. Distribution for the receipt. or kidnapping. 3. Importing. (ii) threatening or placing the minor in fear that any person will be subject to death. OBSCENITY §2G3. intoxicant. or (iv) administering by force or threat of force. other (B) (C) (D) – 218 – . but by not less than 5 levels. if any dangerous weapon was used or brandished. and Fraud) corresponding to the retail value of the material.1.

November 1. coerce. Accordingly. and transportation. the offense involved the use of (A) a misleading domain name on the Internet. Shipping. entice. see Appendix A (Statutory Index). induce. production. including possession with intent to distribute. the minor to engage in prohibited sexual conduct. distributing. or advertising to receive material involving the sexual exploitation of a minor. Application Notes: 1. – 219 – .S. Soliciting. (F) (2) If. 1465. Transporting. increase by 4 levels.C. increase by 2 levels. or facilitate the travel of. or Advertising Material Involving the Sexual Exploitation of a Minor. receiving. If the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence. § 1030(e)(1). increase by 2 levels.S. 2009 GUIDELINES MANUAL §2G3. Possessing Material Involving the Sexual Exploitation of a Minor). If the offense involved the use of a computer or an interactive computer service. related to the transfer of obscene matter.2 (Trafficking in Material Involving the Sexual Exploitation of a Minor. 2252C. §§ 1460-1463. advertisement.—For purposes of this guideline: "Computer" has the meaning given that term in 18 U. Possessing Material Involving the Sexual Exploitation of a Minor with Intent to Traffic.1 than illegal activity covered under subdivision (E). 1466. 2252B. increase by 2 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. or (B) embedded words or digital images in the source code of a website. (E) Distribution to a minor that was intended to persuade. Receiving. increase by 6 levels. possessing. apply §2G2.C. with the intent to deceive a minor into viewing material that is harmful to minors. increase by 7 levels. (3) (4) (c) Cross Reference (1) If the offense involved transporting. For additional statutory provision(s). 1470. Commentary Statutory Provisions: 18 U. Definitions. "Distribution" means any act. Distribution other than distribution described in subdivisions (A) through (E).

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

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. or if a broadcast was made between six o’clock in the morning and eleven o’clock at night. If 6 plus the offense level from the table in §2B1. amendment 164). (2) Commentary Statutory Provisions: 18 U. 2001 (see Appendix C. 2000 (see Appendix C.1 (Theft. §§ 1464. or Transporting Obscene Matter.S. was deleted effective November 1. Obscene Telephone Communications for a Commercial Purpose. 1987. effective November 1. Historical Note: Effective November 1. 1989 (see Appendix C.C. increase to that offense level. Property Destruction. Amended effective November 1. amendment 592). Mailing. 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. A former §2G3. Transferring Obscene Matter to a Minor). November 1.2 §2G3. 2009 GUIDELINES MANUAL §2G3. amendment 164). – 221 – .November 1. 1989 (see Appendix C. and Fraud) corresponding to the volume of commerce attributable to the defendant is greater than the offense level determined above.2. The extent to which the obscene material was distributed is approximated by the volume of commerce attributable to the defendant. amendment 617).1 (Importing. increase by 4 levels. § 223(b)(1)(A). 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. 47 U.2 (Obscene or Indecent Telephone Communications).C. 1468.S.

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

effective November 1. The determination of the applicable alternative base offense level is to be based on the entire conduct underlying the count of conviction (i.1(a) will apply.November 1. Then apply subsection (b) to the alternative base offense level. 1990 (see Appendix C. was deleted by consolidation with §2H1. amendment 521). November 1.1(b) applies. 1989 (see Appendix C. 1987. or to the Chapter Two offense levels for each of the underlying offenses. gender. ethnicity. 5. Damage to Religious Real Property). 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). as appropriate. §2H1. religion. 3.1 (Aggravating Role).2 (Conspiracy to Interfere with Civil Rights). An adjustment from §3A1. 1989 (see Appendix C. November 1. amendment 591). [Deleted] Historical Note: Section 2H1.4. amendment 165). was deleted by consolidation with §2H1.2. Otherwise. 1987. effective November 1. 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). amendments 313 and 327). amended effective November 1. 1990 (see Appendix C.4 (Interference with Civil Rights Under Color of Law). effective November 1.1 effective November 1. [Deleted] Historical Note: Section 2H1. November 1. an additional 3-level enhancement from §3A1. 1995 (see Appendix C. amendment 303). the conduct taken as a whole).1 effective November 1. If the finder of fact at trial or. amendment 327).3 (Use of Force or Threat of Force to Deny Benefits or Rights in Furtherance of Discrimination. Use the alternative base offense level only if it is greater than each of the Chapter Two offense levels determined above. amended effective November 1. or (4). 1995 (see Appendix C. if a 6-level adjustment from §2H1.3 (Abuse of Position of Trust or Use of Special Skill). §2H1. 1987.e. 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. amendment 166). disability. do not apply §3B1. 1989 (see Appendix C. amendment 521). See §3A1. national origin. 1987. 1995 (see Appendix C.3. 2009 GUIDELINES MANUAL §2H1. amendment 521). If subsection (b)(1) applies. 1991 (see Appendix C.4 (a)(2). [Deleted] Historical Note: Section 2H1. in the case of a plea of guilty or nolo contendere.. however. Amended effective November 1. 2. Historical Note: Effective November 1. – 223 – . 1989 (see Appendix C. amendment 430).1(a) will not apply. November 1. was deleted by consolidation with §2H1.1 effective November 1. 2000 (see Appendix C. (3). §2H1.1(c). amendment 303). 4. or sexual orientation of any person. color. amended effective November 1. "Participant" is defined in the Commentary to §3B1.

or agreed to accept anything of value to vote. amendment 661). 242. by deceptive or dishonest conduct. November 1. 597.5 (Other Deprivations of Rights or Benefits in Furtherance of Discrimination). 1973j(a). amendment 521). 42 U.C. Historical Note: Effective November 1. amendment 534). See Chapter Five. 1995 (see Appendix C. 594.§2H1. an upward departure may be warranted. §§ 241. Part B (Role in the Offense). November 1. Obstructing an Election or Registration (a) Base Offense Level (Apply the greatest): (1) 18. fraud. 1015(f). For additional statutory provision(s). Amended effective November 1. POLITICAL RIGHTS §2H2. – 224 – .5 §2H1. or (C) voted more than once in a federal election.S. amendment 167) and November 1. if the defendant (A) solicited.1. Part K (Departures). (2) (3) Commentary Statutory Provisions: 18 U. or 12. except as provided in (3) below. amendment 328). vote for or against a particular candidate.5. Application Note: 1. 1990 (see Appendix C. demanded. 1989 (see Appendix C. 1987. 2009 Historical Note: Section 2H1. effective November 1. 245(b)(1)(A). see Appendix A (Statutory Index). bribery. 2003 (see Appendix C.C. [Deleted] GUIDELINES MANUAL November 1. * * * * * 2. amended effective November 1. 1995 (see Appendix C.S. §§ 1973i. if the obstruction occurred by use of force or threat of force against person(s) or property. if the obstruction occurred by forgery. 1987. or involved corrupting a public official.1 effective November 1. or register to vote. theft. or other means. A defendant who is a public official or who directs others to engage in criminal conduct is subject to an enhancement from Chapter Three. deceit. amendment 168). (b). Background: Alternative base offense levels cover three major ways of obstructing an election: by force. or 6. If the offense resulted in bodily injury or significant property damage. or by bribery. refrain from voting. 592. (B) gave false information to establish eligibility to vote. was deleted by consolidation with §2H1. accepted. 593. 1989 (see Appendix C.

1.—If the offense involved interception of satellite cable transmissions for purposes of commercial advantage or private financial gain (including – 225 – .S. 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. 2009 GUIDELINES MANUAL §2H3. Satellite Cable Transmissions. (Apply the greater) If— (A) the defendant is convicted under 18 U. 7213A. §§ 16962.S.S.C. Interception of Communications. § 1039(d) or (e).C. 18 U. 1039. § 1375a(d)(3)(C). or 6.S. (d). or the defendant is convicted under 18 U. 2511. (b) Specific Offense Characteristics (1) If (A) the defendant is convicted under 18 U.S. Disclosure of Certain Private or Protected Information (a) Base Offense Level (Apply the greater): (1) (2) 9. if the resulting offense level is greater than that determined above. PRIVACY AND EAVESDROPPING §2H3.C. §§ 7213(a)(1)-(3).C. 16984. (a)(5). 7216. § 119. § 605. 47 U. see Appendix A (Statutory Index). increase by 3 levels. § 119. increase by 10 levels.S.S. Eavesdropping.C. apply the guideline applicable to an attempt to commit that other offense. or (B) the purpose of the offense was to obtain direct or indirect commercial advantage or economic gain. Application Notes: 1.S. (2) (B) (c) Cross Reference (1) If the purpose of the offense was to facilitate another offense.November 1. increase by 8 levels.C. §§ 119. 42 U. Commentary Statutory Provisions: 8 U. 1905. if the offense of conviction has a statutory maximum term of imprisonment of one year or less but more than six months.C. 26 U. (d)(5)(B).1 * * * * * 3. For additional statutory provision(s).C.

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

For example. November 1. – 238 – .1(b)(1).2.3(a).2 (Sentencing on Multiple Counts of Conviction) and 18 U. 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.S.5 apply. the failure to appear is treated under §3C1. comment. 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. other than a case of failure to appear for service of sentence.1 (Obstruction of Justice) is made because of the operation of the rules set out in Application Note 3.§2J1.2(c). 2005 (see Appendix C.g. amendment 636). (n. as required by 18 U. 2009 In the case of a failure to appear for service of sentence. 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. perjury) during the investigation. 1990 (see Appendix C. 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. 1991 (see Appendix C. The guideline range for the failure to appear count is to be determined independently and the grouping rules of §§3D1. in the case of a conviction on both the underlying offense and the failure to appear.5 do not apply.) The combined sentence will then be constructed to provide a "total punishment" that satisfies the requirements both of §5G1. 5. (Note that 18 U. Where the base offense level is determined under subsection (a)(2). Historical Note: Effective November 1. In such cases. November 1.1).e.C. amendment 403). consecutive punishment for the failure to appear count. Amended effective November 1.1 (Obstructing or Impeding the Administration of Justice) as an obstruction of the underlying offense. the statute requires that the sentence be imposed to run consecutively to any other sentence of imprisonment. appeal.1). the grouping rules of §§3D1. See §3D1. sentencing. amendment 579). or sentencing of the instant offense.S. the offense level increases in relation to the statutory maximum of the underlying offense.S. 1998 (see Appendix C.C. GUIDELINES MANUAL November 1. comment. (Note that the combination of this instruction and increasing the offense level for the obstructive. 1987. § 3146(b)(2). 2001 (see Appendix C. November 1.) 4. Background: This section applies to a failure to appear by a defendant who was released pending trial. amendment 680). November 1.. § 3146(b)(2) does not require a sentence of imprisonment on a failure to appear count.. See §5G1. where the offense constituted a failure to report for service of sentence). amendment 329). The upward departure will ensure an enhanced sentence for obstructive conduct for which no adjustment under §3C1. although if a sentence of imprisonment on the failure to appear count is imposed. If a defendant is convicted of both the underlying offense and the failure to appear count. (n. In some cases. and the failure to appear count and the count or counts for the underlying offense are grouped together under §3D1. § 3146(b)(2).1-3D1.1-3D1. prosecution.6 3. 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. and §3D1. and the defendant committed additional acts of obstructive behavior (e. or surrender for service of sentence. Therefore. unlike a count in which the statute mandates both a minimum and a consecutive sentence of imprisonment.C. an upward departure may be warranted. However. failure to appear conduct has the effect of ensuring an incremental.

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

if the defendant (A) was a prohibited person at the time the defendant committed the instant offense. 16. 1993 (see Appendix C. amendment 481). 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. §2K1. Unlawful Receipt. amendment 404). 20. see Appendix A (Statutory Index).2 (Improper Storage of Explosive Materials). 1993 (see Appendix C. Amended effective November 1. § 842(p)(2).OFFENSES INVOLVING PUBLIC SAFETY 1. 1991 (see Appendix C. §§ 842(j).1. if the defendant was convicted under 18 U. Improper Storage of Explosive Materials (a) Base Offense Level: 6 Commentary Statutory Provisions: 18 U. Failure to Report Theft of Explosive Materials. The maximum term of Historical Note: Effective November 1. Background: The above-referenced provisions are misdemeanors. 2009 PART K . (k). 18. effective November 1. 1987.S.3. 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.§2K1.1 effective November 1. For additional statutory provision(s). or (B) knowingly distributed explosive materials to a prohibited person. amendment 404). 1991 (see Appendix C.C.S. 844(b). or Transportation of Explosive Materials. EXPLOSIVES AND ARSON §2K1. amendment 481).2. Possession. or (2) (3) (4) – 240 – . amended effective November 1.C. November 1. 1987. imprisonment authorized by statute is one year. was deleted by consolidation with §2K1.1 GUIDELINES MANUAL November 1. [Deleted] Historical Note: Section 2K1. §2K1. Prohibited Transactions Involving Explosive Materials (a) Base Offense Level (Apply the Greatest): (1) 24.

otherwise.November 1. or if death resulted.3 (5) (b) 12.1 (Attempt. § 842(p)(2). or reason to believe that it would be used or possessed in connection with another felony offense. Part A. (B) – 241 – .S. increase by 4 levels.S. apply -(A) §2X1. Specific Offense Characteristics (1) If the offense involved twenty-five pounds or more of explosive materials. 1000 lbs. If the resulting offense level is less than level 18. Provided. that the cumulative offense level determined above shall not exceed level 29. At least 250 but less than 500 lbs. or possessed or transferred any explosive material with knowledge or intent that it would be used or possessed in connection with another offense. or more Increase in Level add 1 add 2 add 3 add 4 add 5. or (B) used or possessed any explosive material in connection with the commission or attempted commission of another offense. or Conspiracy) in respect to that other offense if the resulting offense level is greater than that determined above.C. If the offense involved any explosive material that the defendant knew or had reason to believe was stolen. Solicitation. if the resulting offense level is greater than that determined above. intent. (3) If the defendant (A) was convicted under 18 U. (c) Cross Reference (1) If the defendant (A) was convicted under 18 U. At least 100 but less than 250 lbs. or (B) used or possessed any explosive material in connection with another felony offense. increase as follows: Weight of Explosive Material (A) (B) (C) (D) (E) (2) At least 25 but less than 100 lbs.C. the most analogous offense guideline from Chapter Two. increase to level 18. or possessed or transferred any explosive material with knowledge. 2009 GUIDELINES MANUAL §2K1. Subpart 1 (Homicide). § 842(p)(2). increase by 2 levels. At least 500 but less than 1000 lbs.

"prohibited person" means any person described in 18 U. 844(d). "Explosive material(s)" include explosives. 26 U.2(b) and Application Note 1 of the Commentary to §4B1. 4. unlawfully 2. See 18 U. 6.2. the paper and fuse on a stick of dynamite would be included. "Felony conviction" means a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year. means any offense (federal. For purposes of subsection (a)(4). "Crime of violence" has the meaning given that term in §4B1. Where the conduct charged in the count of which the defendant was convicted establishes that the offense involved a destructive device. 1716. § 5685.2(a) and Application Note 1 of the Commentary to §4B1. blasting agents. For purposes of calculating the weight of explosive materials under subsection (b)(1).S. Exclude the weight of any other shipping or packaging materials. For purposes of this guideline: "Controlled substance offense" has the meaning given that term in §4B1.g. 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. or local) punishable by imprisonment for a term exceeding one year. or Transportation of Firearms or Ammunition.§2K1. 3. 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). A destructive device. Possession. (l)-(o). defined in the Commentary to §1B1. 2283. § 842(i). 2009 Commentary Statutory Provisions: 18 U. state. may contain explosive materials. and detonators.3 GUIDELINES MANUAL November 1.C. (g). 5. "Felony offense.1 (Unlawful Receipt.C.S. Prohibited Transactions Involving Firearms or Ammunition) if the resulting offense level is greater.C. §§ 842(a)-(e).S. 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.C. – 242 – . (i).S. 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. For example. apply §2K2. whether or not a criminal charge was brought.1 (Application Instructions)." as used in subsection (b)(3). § 841(c). "Explosives" is defined at 18 U.1).. count only those explosive materials that were unlawfully sought to be obtained. (h). § 844(j). (p)(2). the box that the dynamite was shipped in would not be included.2 (Definitions of Terms Used in Section 4B1.S.C. For purposes of calculating the weight of explosive materials under subsection (b)(1). Application Notes: 1. or conviction obtained.

or local offense) is to be determined under §2X1. 2003 (see Appendix C. Part A (Criminal History). November 1. Appendix C. do not apply the adjustment in subsection (b)(2) because the base offense level itself takes such conduct into account. See §4A1. As used in subsections (b)(3) and (c)(1). If the defendant is convicted under 18 U. 1995 (see Appendix C.1(a). (3) the defendant knowingly distributed explosive materials to a person under twenty-one years of age. § 842(p)(2). if death results. Appendix C. for purposes of subsection (c)(1)(A). November 1.S. where the defendant used or possessed a firearm or explosive to facilitate another firearms or explosives offense (e.1(a). under the most analogous guideline from Chapter Two. or Conspiracy) or. For purposes of applying subsection (a)(1) or (2). "that other offense" means. plastic explosives). (b). 1991 (see Appendix C.1 (Attempt. or unlawfully distributed. Under subsection (c)(1). An upward departure may be warranted in any of the following circumstances: (1) the quantity of explosive materials significantly exceeded 1000 pounds. comment. November 1. 2009 GUIDELINES MANUAL §2K1. 1989 (see Appendix C. 1993 (see..C. (b). amendment 471). Historical Note: Effective November 1. for purposes of applying subsection (a)(1).6 (Weapons and Dangerous Instrumentalities) may be warranted. amendment 700).2(a)(2). amendment 534). 7. (2) the explosive materials were of a nature more volatile or dangerous than dynamite or conventional powder explosives (e. "another felony offense" and "another offense" refer to offenses other than explosives or firearms possession or trafficking offenses.C.3 possessed. Subpart 1 (Homicide). In addition. November 1. amendment 373). Prior felony conviction(s) resulting in an increased base offense level under subsection (a)(1). 8. including any explosive material that a defendant attempted to obtain by making a false statement. November 1.3). November 1. amendment 183).November 1. Solicitation. amendments 629 and 630). November 1.g. – 243 – . §4A1.2. 9. or (a)(4) are also counted for purposes of determining criminal history points pursuant to Chapter Four. the underlying Federal crime of violence. or (c). 2007 (see Appendix C.g.. 1997 (see Appendix C. November 1.S. use only those felony convictions that receive criminal history points under §4A1. the offense level for the underlying offense (which may be a federal. 2001 (see Appendix C. Amended effective November 1. an upward departure under §5K2. § 842(h) (offense involving stolen explosive materials). 2002 (see Appendix C. 11. amendment 568). 1987. the defendant used or possessed a firearm to protect the delivery of an unlawful shipment of explosives). Part A. use only those felony convictions that are counted separately under §4A1. with respect to an offense under 18 U. However. 1992 (see. (a)(2). and is convicted of no other offenses subject to this guideline. November 1. 10. amendment 655). In addition. (n. amendment 478). or (c). or (4) the offense posed a substantial risk of death or bodily injury to multiple individuals. state. amendment 646).

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

or to warn of dangers or obstructions to navigation. amendment 330).—If bodily injury resulted. November 1.4 Commentary Statutory Provisions: 18 U. § 2332f(e)(3).S.S. "Explosives" includes any explosive. and (7). 1991 (see Appendix C. amendment 617). and 185). See Chapter Five. as a means of transportation on water.—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. amendment 576). or destructive device. see Appendix A (Statutory Index).S. 1988). amendment 637). Amended effective November 1.— 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. 33. November 1. on. "Mass transportation" has the meaning given that term in 18 U. "Maritime facility" means any structure or facility of any kind located in. Upward Departure Provision. Definitions. operated. (5). "State or government facility".C. respectively. amendments 699 and 700). 2. November 1.November 1. Application Notes: 1. (a)(4).C. 2007 (see Appendix C. Part K (Departures). United States Code. or adjacent to any waters subject to the jurisdiction of the United States and used. 2291. under. 1998 (see Appendix C. including any contiguous or adjoining property under common ownership or operation. amendments 182. "National cemetery" means a cemetery (A) established under section 2400 of title 38. (6). amendment 655). "place of public use". 2003 (see Appendix C. 184. 2002 (see Appendix C. November 1. or maintained by a public or private entity. Historical Note: Effective November 1. 2332f. Background: Subsection (b)(2) implements the directive to the Commission in section 2 of Public Law 105–101. Risk of Death or Serious Bodily Injury. November 1. explosive material. and "public transportation system" have the meaning given those terms in 18 U. (h) (only in the case of an offense committed prior to November 18.S. or capable of being used. 1989 (see Appendix C. For additional statutory provision(s). 2009 GUIDELINES MANUAL §2K1. 81. §§ 32(a).C. 2282B. (b). 49 U. (i). the Secretary of the Air Force. 3. or the Secretary of the Interior. (a)(2). 2332a. "infrastructure facility". "Vessel" includes every description of watercraft or other artificial contrivance used. 2282A. 2001 (see Appendix C. – 245 – . 2275.C. § 60123(b). an upward departure may be warranted. 1153. 1855. November 1. 1990 (see Appendix C. 844(f). 1987. November 1. the Secretary of the Navy. amendment 404). or (B) under the jurisdiction of the Secretary of the Army. § 1992(d)(7). 1992(a)(1).

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

S.C. amendment 188). if (A) the offense involved a (i) semiautomatic firearm that is capable of accepting a large capacity magazine.S.C. 24. amended effective November 1. 2009 GUIDELINES MANUAL §2K2. or (ii) firearm that is described in 26 U. amendment 332). 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.November 1. Using or Carrying Explosives in Certain Crimes). effective November 1. (g).6 (Shipping. or Transportation of Firearms or Ammunition. or Receiving Explosives with Felonious Intent or Knowledge. 1989 (see Appendix C. A former §2K1. Transporting. * * * * * 2. FIREARMS §2K2. Possession. or (ii) firearm that is described in 26 U. [Deleted] Historical Note: Section 2K1. Historical Note: Effective November 1. 1990 (see Appendix C. amendment 373). § 842(f). § 5845(a). Prohibited Transactions Involving Firearms or Ammunition (a) Base Offense Level (Apply the Greatest): (1) 26. 1993 (see Appendix C. Background: The above-referenced provisions are recordkeeping offenses applicable only to "licensees. or Transportation of Explosives Materials. apply §2K1.C. amendment 331). 1991 (see Appendix C.S. if (A) the offense involved a (i) semiautomatic firearm that is capable of accepting a large capacity magazine.7 (Use of Fire or Explosives to Commit a Federal Felony).3 effective November 1. Commentary Statutory Provisions: 18 U.C. §2K1. Possession. 1990 (see Appendix C. 22.7.S. 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.3 (Unlawful Receipt. § 841(m). § 5845(a). amendment 481). amendment 303) and November 1. effective November 1. amendment 373).4 effective November 1. 1989 (see Appendix C. Prohibited Transactions Involving Explosive Materials). 1991 (see Appendix C. was deleted by consolidation with §2K2.1 explosive materials offense. amended effective November 1. was deleted by consolidation with §2K1.1. Unlawful Receipt." who are defined at 18 U. and (B) the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either (2) (3) – 247 – .

and did not unlawfully discharge or otherwise unlawfully use such firearms or ammunition. If the defendant. (m). (4) 20.C. (e).S. (a)(3).S. if the offense involved a firearm described in 26 U. other than a defendant subject to subsection (a)(1). (7) (8) (b) Specific Offense Characteristics (1) If the offense involved three or more firearms. or (x)(1). § 922(d). or the (i) offense involved a (I) semiautomatic firearm that is capable of accepting a large capacity magazine. 12. (B) (5) (6) 18. or (II) is convicted under 18 U.C. increase by 15 levels.S. or (B) is convicted under 18 U.C. a missile. § 5845(a). 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 10.1 GUIDELINES MANUAL November 1. and (ii) defendant (I) was a prohibited person at the time the defendant committed the instant offense. except as provided below.C. 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. if the defendant (A) was a prohibited person at the time the defendant committed the instant offense. (a)(4). or (II) firearm that is described in 26 U. or (a)(5). 14. § 922(d). or 6. If the offense involved— (A) a destructive device that is a portable rocket. § 5845(a). § 922(c). or a device for use in launching a portable rocket or a missile.S. 2009 a crime of violence or a controlled substance offense. (a)(2). (s).§2K2. possessed all ammunition and firearms solely for lawful sporting purposes or collection. (f).C. if the defendant is convicted under 18 U.S. (t). decrease the offense level determined above to level 6. or (3) – 248 – .

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

This definition does not include a semiautomatic firearm with an attached tubular device capable of operating only with .1 Application Notes: 1. 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. § 921(a)(3).S.2 (Definitions of Terms Used in Section 4B1. 2009 Definitions. "prohibited person" means any person described in 18 U.1). In the unusual case in which it is established that neither avoidance of state. 2..2. "Firearm" has the meaning given that term in 18 U. or (B) a magazine or similar device that could accept more than 15 rounds of ammunition was in close proximity to the firearm.—For purposes of subsections (a)(4)(B) and (a)(6).22 caliber rim fire ammunition.C. § 921(a)(17)(A).§2K2. "Controlled substance offense" has the meaning given that term in §4B1. 5. and (a)(4). Definition of "Prohibited Person". (a)(3). – 250 – . 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.C. nor any other underlying unlawful purpose was involved.—For purposes of subsections (a)(1).g. local. § 922(g) or § 922(n). "Crime of violence" has the meaning given that term in §4B1.S. "Felony conviction" means a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year.2(a) and Application Note 1 of the Commentary to §4B1. or for some other underlying unlawful purpose. Semiautomatic Firearm Capable of Accepting a Large Capacity Magazine. § 5845(f). A conviction for an offense committed at age eighteen years or older is an adult conviction.C. Application of Subsection (b)(1). regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed. local.— For purposes of this guideline: "Ammunition" has the meaning given that term in 18 U. count only those firearms that were unlawfully sought to be obtained. or other federal law restricting the possession of firearms. or other federal firearms law.—For purposes of calculating the number of firearms under subsection (b)(1). 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). 3.S. 4. 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.— Subsection (a)(7) includes the interstate transportation or interstate distribution of firearms. Application of Subsection (a)(7).C.2(b) and Application Note 1 of the Commentary to §4B1. which is frequently committed in violation of state.S. "Destructive device" has the meaning given that term in 26 U. GUIDELINES MANUAL November 1.

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

—An upward departure may be warranted in any of the following circumstances: (1) the number of firearms substantially exceeded 200. if the defendant falsifies a record to conceal the sale of a firearm to a prohibited person. transfer.C.—A defendant who is subject to an enhanced sentence under the provisions of 18 U.C. destructive devices). the offense level is increased to the offense level applicable to the sale of a firearm to a prohibited person). Application of Subsection (b)(7). the offense level is increased to the offense level for the substantive firearms or ammunition offense (e.. (b). if a record-keeping offense was committed to conceal a substantive firearms or ammunition offense. (a)(4)(A). Part A (Criminal History). transferred.4.S. 13.g.1(a). or disposal of a firearm to an individual— (I) (II) whose possession or receipt of the firearm would be unlawful. or otherwise dispose of firearms to another individual. (a)(3).g. Upward Departure Provisions.—Subsection (b)(5) applies. or (4) the offense posed a substantial risk of death or bodily injury to multiple individuals (see Application Note 7). 10. 12. 9. 2009 defendant knew or had reason to believe that the firearm was stolen or had an altered or obliterated serial number. for purposes of applying subsection (a)(1) and (a)(2). or (c). or (c). or who intended to use or dispose of the firearm unlawfully.C.1 GUIDELINES MANUAL November 1. (ii) – 252 – . use only those felony convictions that receive criminal history points under §4A1.— (A) In General. (3) the offense involved large quantities of armor-piercing ammunition (defined at 18 U. and knew or had reason to believe that such conduct would result in the transport. § 922(p)). military type assault rifles.S. or received two or more firearms with the intent to transport. See §4B1.2(a)(2). § 921(a)(17)(B)). regardless of whether anything of value was exchanged. 11.—For purposes of applying subsection (a)(1).— Under subsection (b)(7). Armed Career Criminal. § 924(e) is an Armed Career Criminal. Prior felony conviction(s) resulting in an increased base offense level under subsection (a)(1). In addition. See §4A1. (n.1(a).§2K2. or (4)(A). (3). Application of Subsection (b)(5). (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. use only those felony convictions that are counted separately under §4A1. machineguns. if the defendant— (i) transported. or otherwise disposed of two or more firearms to another individual. (a)(4)(B). comment.2. (b). §4A1.S. non-detectable ("plastic") firearms (defined at 18 U. transfer.3). (a)(2). Prior Felony Convictions. (2)..

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

1 effective November 1. 1989 (see Appendix C. effective November 1. amendment 707). 2007 (see Appendix C. amendment 374). November 1. Armor-Piercing Ammunition. amendment 478).g.2 (Unlawful Trafficking and Other Prohibited Transactions Involving Firearms). whether or not convicted of another crime. the guideline sentence is the term of imprisonment required by statute. 2009 "Another offense". 1992 (see Appendix C. was convicted of violating section 924(c) or section 929(a) of title 18. amendment 374). amendments 629-631). [Deleted] Historical Note: Section 2K2. amendment 189). (b) – 254 – . other than the explosive or firearms possession or trafficking offense. amendment 646). United States Code.§2K2. 1989 (see Appendix C. 2001 (see Appendix C. an upward departure under §5K2. was deleted by consolidation with §2K2. whether or not convicted of another crime. was deleted by consolidation with §2K2. amendment 333). November 1. Amended effective November 1. amendments 679 and 680). was deleted by consolidation with §2K2. effective November 1.2 effective November 1. 1990 (see Appendix C.3 (Prohibited Transactions in or Shipment of Firearms and Other Weapons).4. means any federal. (D) Upward Departure Provision.3. November 1. if the defendant. amended effective January 15. §2K2. November 1. the guideline sentence is the minimum term of imprisonment required by statute. Chapters Three and Four shall not apply to that count of conviction. November 1. Historical Note: Effective November 1.1 GUIDELINES MANUAL November 1.—In a case in which the defendant used or possessed a firearm or explosive to facilitate another firearms or explosives offense (e. and November 1. or Explosive During or in Relation to Certain Crimes (a) If the defendant. effective November 1. 691. amendment 189). amendments 568 and 575). or a conviction obtained. amendment 374). amendment 522). 1997 (see Appendix C. amendments 578 and 586). 1987. or With Knowledge that It Will Be Used in Committing Another Offense). Except as provided in subsection (c). 1991 (see Appendix C. 2004 (see Appendix C. Shipping or Transferring a Firearm or Ammunition With Intent to Commit Another Offense. November 1. November 1. for purposes of subsection (c)(1). 2002 (see Appendix C. November 1. 1987. 1987. 1988 (see Appendix C. 2006 (see Appendix C. amendment 605). state. 1989 (see Appendix C. §2K2. amendment 189). amendments 686. amendment 34).1 effective November 1. Use of Firearm. and 696). 1998 (see Appendix C. Transporting. November 1. regardless of whether a criminal charge was brought. was convicted of violating section 844(h) of title 18. United States Code. or local offense. A former §2K2. 1995 (see Appendix C. 2000 (see Appendix C. 1989 (see Appendix C. [Deleted] Historical Note: Section 2K2.6 (Weapons and Dangerous Instrumentalities) may be warranted. amendment 471). November 1. 1991 (see Appendix C. November 1.3 (Receiving. 1990 (see Appendix C. 1991 (see Appendix C. amendment 333). November 1. Chapters Three (Adjustments) and Four (Criminal History and Criminal Livelihood) shall not apply to that count of conviction. November 1. 2005 (see Appendix C. 1993 (see Appendix C.2. §2K2. the defendant used or possessed a firearm to protect the delivery of an unlawful shipment of explosives). November 1. amendment 669). amendment 189). November 1..

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

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

§ 3571. provide mandatory minimum terms of imprisonment.1 (Procedure for Determining Offense Level on Multiple Counts) and 5G1. This is required because the offense level for the underlying offense may be reduced when there is also a conviction under 18 U. United States Code.1 (Imposition of a Term of Supervised Release). 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. To avoid double counting. § 844(h). amendment 190).— Imposition of a term of supervised release is governed by the provisions of §5D1. or discharge of a firearm is not applied (see Application Note 4). The Commission has not established a fine guideline range for the unusual case in which there is no conviction for the underlying offense. Terms of Supervised Release.C. or possession is not applied in respect to such underlying offense. § 924(c). 2002 (see Appendix C. Possession of Firearm or Dangerous Weapon in Federal Facility.1 (Acceptance of Responsibility) may apply. See §§3D1. 2009 GUIDELINES MANUAL §2K2. November 1. amendments 481 and 489). § 924(c). provides a mandatory term of imprisonment. amendment 332).S. §2K2. Fines.S.— Subsection (d) sets forth special provisions concerning the imposition of fines. November 1. use.5. or – 257 – .November 1. a consolidated fine guideline is determined by the offense level that would have applied to the underlying offense absent a conviction under 18 U. although a fine is authorized under 18 U. as provided in §4B1.1(c). amendments 598. Such offenses are excluded from application of those chapters because the guideline sentence for each offense is determined only by the relevant statute. United States Code. when a sentence under this section is imposed in conjunction with a sentence for an underlying offense. Amended effective November 1. § 844(h). do not apply Chapter Three (Adjustments) and Chapter Four (Criminal History and Criminal Livelihood) to any offense sentenced under this guideline. other than §§4B1. brandishing. and 600). 2006 (see Appendix C. November 1. or § 929(a). Chapters Three and Four. amendment 642). In determining the guideline sentence for those cases covered by subsection (c): (A) the adjustment in §3E1.2.1 and 4B1. shall apply. any specific offense characteristic for explosive or firearm discharge. Background: Section 844(h) of title 18. 1991 (see Appendix C.C.2. 1990 (see Appendix C. A sentence imposed pursuant to any of these statutes must be imposed to run consecutively to any other term of imprisonment. 6. November 1. 7. use. November 1. 2000 (see Appendix C. and (B) no other adjustments in Chapter Three and no provisions of Chapter Four.C. brandishing. Where there is also a conviction for the underlying offense. amendment 405). 1987. amendment 696). November 1. 1993 (see Appendix C.5 5. or § 929(a) in that any specific offense characteristic for possession.—Except for those cases covered by subsection (c). 1989 (see Appendix C. Sections 924(c) and 929(a) of title 18. Historical Note: Effective November 1. 599.S.

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

or local) punishable by imprisonment for a term exceeding one year. do not apply the adjustment in §3B1. or school zone. amendment 661).—If subsection (b)(1) applies. (B) (C) 2. discharged. Meaning of "Felony Offense". regardless of whether a criminal charge was brought. amendment 191). Meaning of "Used". increase by 4 levels.S.C.6 4. November 1. Where the firearm was brandished. limits the accountability of the defendant to the defendant’s own conduct and conduct that the defendant aided or abetted. or (ii) used as a means of bartering. "felony offense" means any offense (federal. Grouping of Multiple Counts. amendment 374). in a federal facility. federal court facility. an upward departure may be warranted. and the cross reference from subsection (c)(1) does not apply. Application Notes: 1. 2009 GUIDELINES MANUAL §2K2. Inapplicability of §3B1.5. state. the term "defendant". Possessing. §2K2. – 259 – . 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. commanded. 1991 (see Appendix C. Application of Subsection (b)(1). Commentary Statutory Provision: 18 U. for purposes of subsection (b)(1). "used" means the body armor was (i) actively employed in a manner to protect the person from gunfire.November 1. 2003 (see Appendix C.—Consistent with §1B1.6. § 931. or a conviction obtained. induced. or otherwise used. Amended effective November 1.5 (Use of Body Armor in Drug Trafficking Crimes and Crimes of Violence).—For purposes of subsection (b)(1). Subsection (b)(1) does not apply if the body armor was merely possessed.— (A) Meaning of "Defendant". procured.3 (Relevant Conduct).—For purposes of subsection (b)(1). or willfully caused. Purchasing. counseled. 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. For example. 1989 (see Appendix C. Historical Note: Effective 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.

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

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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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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§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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§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

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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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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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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 – . 1987.C. GUIDELINES MANUAL November 1. § 1428.5. Historical Note: Effective November 1.5 §2L2.§2L2.S. 2009 Failure to Surrender Canceled Naturalization Certificate (a) Base Offense Level: 6 Commentary Statutory Provision: 18 U.

2009 GUIDELINES MANUAL §2M2. § 2381. Premises. Treason (a) Base Offense Level: (1) (2) 43. including many of the more specific offenses in this Part. 49 U. 42 U. if the conduct is tantamount to waging war against the United States. 1987. otherwise.C. – 273 – .1. the offense level applicable to the most analogous offense. § 60123(b).S. War Material.C. or Production of Defective.C. 1987. SABOTAGE §2M2. 2154.C. 2001 (see Appendix C. TREASON §2M1. amendment 633). Background: Treason is a rarely prosecuted offense that could encompass a relatively broad range of conduct. § 2284.1 PART M . § 2153. 1. with reference made to the most analogous offense guideline in lesser cases.S. Historical Note: Effective November 1.S.OFFENSES INVOLVING NATIONAL DEFENSE AND WEAPONS OF MASS DESTRUCTION Historical Note: Effective November 1. or Utilities (a) Base Offense Level: 32 Commentary Statutory Provisions: 18 U.1. Commentary Statutory Provision: 18 U.November 1. Destruction of. Amended effective November 1. * * * * * 2.S. The guideline contemplates imposition of the maximum penalty in the most serious cases.

3.1 effective November 1. amendment 637).S. ESPIONAGE AND RELATED OFFENSES §2M3.S. * * * * * 3. §2M2.4. Amended effective November 1. Historical Note: Effective November 1.1 Application Note: 1.C.1. 1993 (see Appendix C.S.4 (Production of Defective National Defense Material.§2M2. § 2284.1 are included in this section.2 (Production of Defective War Material. 1993 (see Appendix C. Premises.S. 2002 (see Appendix C. § 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. [Deleted] Historical Note: Section 2M2. Gathering or Transmitting National Defense Information to Aid a Foreign Government (a) Base Offense Level: – 274 – . Destruction of. 1987.S. [Deleted] Historical Note: Section 2M2. §§ 2155. 2156. November 1. amendment 481). effective November 1. was deleted by consolidation with §2M2. Premises.2. amendment 481).C. Amended effective November 1. 1993 (see Appendix C. Historical Note: Effective November 1. November 1. 1987. GUIDELINES MANUAL November 1. 2002 (see Appendix C. or Utilities (a) Base Offense Level: 26 Commentary Statutory Provisions: 18 U. § 60123(b). 1993 (see Appendix C. was deleted by consolidation with §2M2. amendment 481). 1987. Violations of 42 U. 1987. § 2284 not included in §2M2.3 effective November 1. effective November 1. National Defense Material. Application Note: 1. §2M2. 42 U. or Utilities). 2009 Violations of 42 U.C. Premises. §2M2. amendment 481).C. amendment 637). or Utilities).C. or Production of Defective. 49 U.

For additional statutory provision(s). (d). Application Notes: 1.C. Commentary Statutory Provisions: 18 U. §2M3. if disclosed. otherwise. otherwise. or 30. Application Notes: 1. Background: Offense level distinctions in this subpart are generally based on the classification of the information gathered or transmitted. When revelation is likely to cause little or no harm. (g). See Commentary to §2M3. 2009 GUIDELINES MANUAL §2M3. § 794. 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. – 275 – . in turn.S. if top secret information was gathered or transmitted. (b). §§ 2274(a). This classification. Historical Note: Effective November 1. §§ 793(a). 42 U. or 37. Part K (Departures). "Top secret information" is information that.S. See Chapter Five.2 (1) (2) 42.C. if top secret information was gathered. Gathering National Defense Information (a) Base Offense Level: (1) (2) 35. 1987. 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.S." Executive Order 12356. Commentary Statutory Provisions: 18 U. (c). 1030(a)(1). 2275. 3. "reasonably could be expected to cause exceptionally grave damage to the national security. a downward departure may be warranted. and that the revelation will significantly and adversely affect security interests. (e).C.1. (b). reflects the importance of the information to the national security. see Appendix A (Statutory Index). 2.2.November 1.

C. or note relating to the national defense. See Commentary to §2M3. § 783(b). (c). map. appliance. 798.2.1. if top secret information. and the unauthorized receipt of classified information. 50 U. 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. instrument. writing. Unauthorized Receipt of Classified Information (a) Base Offense Level: (1) (2) 29. (e).S. Disclosure of Classified Cryptographic Information.S. Application Notes: 1. 2. § 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.S. apply §2M3. or 24.§2M3. 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. See Commentary to §2M3. § 793(d) or (e). photograph. otherwise. Historical Note: Effective November 1.C. – 276 – . If the defendant was convicted of 18 U. Amended effective November 1. Unauthorized Disclosure to a Foreign Government or a Communist Organization of Classified Information by Government Employee. Transmitting National Defense Information. 2009 If the defendant is convicted under 18 U. Amended effective November 1. sketch. the unauthorized disclosure to a foreign government or a communist organization of classified information by a government employee.C.2 2. model. 1987.3. signal book. amendment 654). 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. plan.C. Commentary Statutory Provisions: 18 U. § 793(d) or (e). GUIDELINES MANUAL November 1. blueprint.3 may apply. 1987.S. Background: The statutes covered in this section proscribe willfully transmitting or communicating to a person not entitled to receive it a document. amendment 481). §2M3.S. 1993 (see Appendix C. code book. 2003 (see Appendix C. photographic negative.C. Historical Note: Effective November 1. §2M3.3. (g). §§ 793(d).

6 (Disclosure of Classified Cryptographic Information). 2009 GUIDELINES MANUAL §2M3. 1987.6. Losing National Defense Information (a) Base Offense Level: (1) (2) 18. Tampering with Restricted Data Concerning Atomic Energy (a) Base Offense Level: 24 Commentary Statutory Provision: 42 U. Background: Offenses prosecuted under this statute generally do not involve subversive conduct on behalf of a foreign power. See Commentary to §2M3.3 effective November 1. Commentary Statutory Provision: 18 U. – 277 – .4.S. [Deleted] Historical Note: Section 2M3. but rather the loss of classified information by the gross negligence of an employee of the federal government or a federal contractor. 1993 (see Appendix C. §2M3. § 793(f).1. Application Note: 1. was deleted by consolidation with §2M3. or 13. See Commentary to §2M3.1.6 §2M3.November 1. otherwise.C. 1987. 1987. §2M3. amendment 481).5. Application Note: 1. effective November 1. if top secret information was lost. § 2276.S. Historical Note: Effective November 1. Historical Note: Effective November 1.C.

Amended effective November 1. § 421 not covered by this guideline may vary in the degree of harm they inflict.1. §2M3. Violations of 50 U.S. This guideline does not apply to violations of 50 U.7. Background: The alternative base offense levels reflect a statutory distinction by providing a greater base offense level for a violation of 50 U. 2. or having had. was deleted by consolidation with §2M3. Disclosure of Information Identifying a Covert Agent (a) Base Offense Level: (1) 30. or who had authorized access to classified information identifying a covert agent.S. This guideline applies only to violations of 50 U. A term of imprisonment imposed for a conviction under 50 U. See Commentary to §2M3. 2009 Historical Note: Section 2M3. if the information was disclosed by a person with authorized access only to other classified information.7 (Unauthorized Disclosure to Foreign Government or a Communist Organization of Classified Information by Government Employee).3 effective November 1. 2001 (see Appendix C.8. § 421 by defendants who disclosed such information without having. §2M3.C. 1993 (see Appendix C.S. amendment 481).3 effective November 1.S. § 421.8 (Receipt of Classified Information). [Deleted] GUIDELINES MANUAL November 1.C. who disclosed such information without having or having had authorized access to classified information.§2M3. authorized access to classified information. was deleted by consolidation with §2M3.C. 1987.C.C. See §2X5. Historical Note: Effective November 1. amendment 481). including journalists. and the court should impose a sentence that reflects such harm.C. § 421 by defendants. § 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. (2) Commentary Statutory Provision: 50 U.9. [Deleted] Historical Note: Section 2M3. 1987. effective November 1. or 25. – 278 – . if the information was disclosed by a person with.1 (Other Offenses).7 §2M3. § 421 by persons who have or previously had authorized access to classified information. 3.S.C.S. § 421 shall be imposed consecutively to any other term of imprisonment. 1987.S. 1993 (see Appendix C. amendment 636). Application Notes: 1. This guideline does not apply to violations of 50 U. effective November 1.

If the offense was committed when persons were being inducted for compulsory military service during time of war or armed conflict.1 * * * * * 4. increase by 6 levels. or chemical weapons or materials – 279 – . Historical Note: Effective November 1. 1987. Amended effective November 1. * * * * * 5. § 462. AND PROVIDING MATERIAL SUPPORT TO DESIGNATED FOREIGN TERRORIST ORGANIZATIONS Historical Note: Effective November 1. 1987. Subsection (b)(1) does not distinguish between whether the offense was committed in peacetime or during time of war or armed conflict. biological. 1990 (see Appendix C. 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. an upward departure may be warranted. amendment 637). Evasion of Export Controls.November 1. amendment 336). Commentary Statutory Provision: 50 U. Financial Transactions with Countries Supporting International Terrorism (a) Base Offense Level (Apply the greater): (1) 26. App. Amended effective November 1.S. 2002 (see Appendix C. if (A) national security controls or controls relating to the proliferation of nuclear. PROHIBITED FINANCIAL TRANSACTIONS AND EXPORTS. 2009 GUIDELINES MANUAL §2M5.1. Application Note: 1. EVASION OF MILITARY SERVICE §2M4.1.C. §2M5.

C. Where such factors are present in an extreme form. – 280 – . and any proceeds obtained directly or indirectly as a result of the violation. Application Notes: 1. 2002 (see Appendix C. a departure from the guidelines may be warranted.S. 2001 (see Appendix C. §§ 2401-2420. §2M5. Amended effective November 1.S. if the offense involved only non-fully automatic small arms (rifles. property used to export or attempt to export that was the subject of the violation. the volume of commerce involved. 1987. In addition to the provisions for imprisonment. the extent of planning or sophistication.C. 3. 4. App. In determining the sentence within the applicable guideline range. whichever is greater. 2405). or claim against: any goods or tangible items that were the subject of the violation. The maximum fine for individual defendants is $250. the court may consider the degree to which the violation threatened a security interest of the United States. § 2410 contains provisions for criminal fines and forfeiture as well as civil penalties. or Military Equipment or Services Without Required Validated Export License (a) Base Offense Level: (1) (2) 26. handguns. "a country supporting international terrorism" means a country designated under section 6(j) of the Export Administration Act (50 U. App. Commentary Statutory Provisions: 18 U. amendment 633). November 1. 14. § 2332d.§2M5. or (B) the offense involved a financial transaction with a country supporting international terrorism. or (2) 14. the maximum fine is five times the value of the exports involved or $1 million.1 GUIDELINES MANUAL November 1. In the case of corporations. the defendant is subject to forfeiture of any interest in. Exportation of Arms. except as provided in subdivision (2) below.2. 50 U. in addition to any other sanction.S. See Chapter Five. otherwise.S. For purposes of subsection (a)(1)(B). 2. App. or shotguns). 50 U. and whether there were multiple occurrences. In the case of a violation during time of war or armed conflict. Part K (Departures). Munitions.C. amendment 637). Historical Note: Effective November 1. an upward departure may be warranted. 2009 were evaded. When national security controls are violated.C. and the number of weapons did not exceed ten. security of.000.

1990 (see Appendix C. 22 U. amendment 337). § 2778. 2001 (see Appendix C. bombs.C.S.C. November 1. or reason to believe they are to be used to commit or assist in the commission of a violent act.S. See Chapter Five. The items subject to control constitute the United States Munitions List. a departure from the guidelines may be warranted. which is set out in 22 C. and certain firearms.2 (Second – 281 – . and whether there were multiple occurrences. rockets. (C) explosives. Part K (Departures). (D) funds with the intent. (B) firearms. Included in this list are such things as military aircraft. explosives. §§ 2778. to control exports of defense articles and defense services that he deems critical to a security or foreign policy interest of the United States.November 1. knowledge. military and space electronics. increase by 2 levels. a downward departure may be warranted. Where such factors are present in an extreme form. knowledge. Part 121. helicopters.R. vessels of war. the volume of commerce involved. the extent of planning or sophistication. Application Notes: 1. the court may consider the degree to which the violation threatened a security or foreign policy interest of the United States. shells. Providing Material Support or Resources to Designated Foreign Terrorist Organizations or Specially Designated Global Terrorists. or reason to believe such funds would be used to purchase any of the items described in subdivisions (A) through (C). the President is authorized. Under 22 U.3. 2.3 Commentary Statutory Provisions: 18 U.S. 2009 GUIDELINES MANUAL §2M5. amendment 700). §2M5.1 (First Degree Murder) if the death was caused intentionally or knowingly. through a licensing system administered by the Department of State.1. amendment 633). Historical Note: Effective November 1. Amended effective November 1. November 1. 2007 (see Appendix C. (c) Cross References (1) If the offense resulted in death. 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. 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. 2780. apply §2A1. or §2A1. 1987.F. missiles. In determining the sentence within the applicable guideline range. or (E) funds or other material support or resources with the intent. an upward departure may be warranted. In the unusual case where the offense conduct posed no such risk. § 554.C. In the case of a violation during time of war or armed conflict. artillery.

"chemical weapon".R. §§ 2283. (2) If the offense was tantamount to attempted murder. "nuclear material". nuclear material. or nuclear byproduct material. or (D) a weapon of mass destruction. 2009 Degree Murder) otherwise.1 (Assault with Intent to Commit Murder. and Other Weapons of Mass Destruction). or delivery system. "Material support or resources" has the meaning given that term in 18 U. "toxin". the court may consider the degree to which the violation threatened a security interest of the United States. "nuclear byproduct material".C.S. "Explosives" has the meaning given that term in Application Note 1 of the Commentary to §2K1. Attempted Murder).§2M5. § 2339B(g)(6). §§ 1701.F. "Dangerous weapon".— (A) In General. and Chemical Weapons. apply §2M6. the volume of the funds or other material support or resources involved. § 594. 2284. "Foreign terrorist organization" has the meaning given the term "terrorist organization" in 18 U. If the offense involved the provision of (A) a nuclear weapon.S. and Other Weapons of Mass Destruction). Definitions.1 (Nuclear. § 2339B(g)(4). 2339C(a)(1)(B). "Specially designated global terrorist" has the meaning given that term in 31 C. the extent of planning or sophistication. "firearm". (c)(2)(B) (but only with respect to funds known or intended to have been provided or collected in violation of 18 U.—In determining the sentence within the applicable guideline range. § 2339C(a)(1)(B)).513.S.4 (Arson. apply §2A2. and whether there were multiple occurrences. 2339B.C.C.—For purposes of this guideline: "Biological agent". (B) a chemical weapon. and "weapon of mass destruction" have the meaning given those terms in Application Note 1 of the Commentary to §2M6. if the resulting offense level is greater than that determined above.1 (Application Instructions). and Chemical Weapons.S. Biological. Application Notes: 1. – 282 – .3 GUIDELINES MANUAL November 1. toxin.C.1 (Nuclear. (C) a biological agent. 2. Departure Provisions. 50 U. if the resulting offense level is greater than that determined above. and "destructive device" have the meaning given those terms in Application Note 1 of the Commentary to §1B1.S. if the resulting offense level is greater than that determined above.C. 1705. (3) Commentary Statutory Provisions: 18 U. Property Damage by Use of Explosives). Biological.

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

42 U.S. or business functions or services. (3) If (A) subsection (a)(2). If the offense was tantamount to attempted murder.S.C. or (B) conduct tantamount to the attempted murder of more than one victim. apply §2A2. increase by 4 levels. §§ 175. "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. § 229F(1). Commentary Statutory Provisions: 18 U. see Appendix A (Statutory Index). 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. 175b. and (D)).C. increase by 2 levels. For additional statutory provision(s). 175c. 2283.C. or §2A1. 1992(a)(2).C. if the resulting offense level is greater than that determined above.1 (Assault with Intent to Commit Murder. (b)(2). decontaminate. governmental. or (iii) the degree of injury is between that specified in subdivisions (i) and (ii). Definitions. Attempted Murder). Chapter Three.S.—For purposes of this guideline: "Biological agent" has the meaning given that term in 18 U. 2291. if the resulting offense level is greater than that determined above. and (B) includes an organization designated by the Secretary of State as a – 284 – .§2M6.2 (Second Degree Murder) otherwise. 2131. 2332h. §§ 2077(b).1 GUIDELINES MANUAL November 1. (c) Cross References (1) If the offense resulted in death. (ii) any victim sustained serious bodily injury. or (ii) a substantial expenditure of funds to clean up. 842(p)(2) (only with respect to weapons of mass destruction as defined in 18 U. (a)(4). increase by 3 levels. 2122. life-threatening. or serious bodily injury of more than one victim.S. 2009 4 levels.1 (First Degree Murder) if the death was caused intentionally or knowingly. (C). § 2332a(c)(2)(B). (2) (d) Special Instruction (1) If the defendant is convicted of a single count involving (A) conduct that resulted in the death or permanent.C. (a)(3). 831. § 178(1). and (B) the offense resulted in (i) substantial disruption of public. Application Notes: 1. 229. or (a)(4) applies. 832.S. apply §2A1. (a)(3). or otherwise respond to the offense. "Chemical weapon" has the meaning given that term in 18 U.

In such a case. or material.C. 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. "Toxin" has the meaning given that term in 18 U. 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. § 178(4). – 285 – . agent. possession of the weapon. § 2332a(c)(2)(B).S. agent.C. § 831(f)(2). "Weapon of mass destruction" has the meaning given that term in 18 U. respectively. In contrast.C.1 foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act (8 U.S. the dispersal of talcum powder does not evidence an intent on the defendant’s part to carry out the threat. § 229F(8)(A). "Listed precursor or a listed toxic chemical" means a precursor or a toxic chemical. agent. "Precursor" has the meaning given that term in 18 U. agent.S. and (D).C.S. § 229F(6)(A). § 175b(b)(2).S.C. "Nuclear byproduct material" has the meaning given that term in 18 U.S. § 229F(6)(B). or material.C. "Restricted person" has the meaning given that term in 18 U. or material is conduct evidencing an intent to use that weapon. See 18 U. agent. § 8401). "Vector" has the meaning given that term in 18 U. (C). (8)(B).November 1.C. "Toxic chemical" has the meaning given that term in 18 U. Threat Cases.C. § 178(2). or material covered by this guideline and the possession of that weapon.S. For example.C. or material covered by this guideline but that did not involve any conduct evidencing an intent or ability to carry out the threat.C.C.C.S. "National of the United States" has the meaning given that term in section 101(a)(22) of the Immigration and Nationality Act (8 U. In such a case. "Nuclear material" has the meaning given that term in 18 U. In such a case. 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.—Subsection (a)(4)(B) applies in cases that involved a threat to use a weapon. listed in Schedule I of the Annex on Chemicals to the Chemical Weapons Convention. 2. § 262a).C. 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. § 831(f)(1). § 1101(a)(22)).S.S. Subsection (a)(4)(B) shall not apply in any case involving both a threat to use any weapon. § 1219).S. "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. 2009 GUIDELINES MANUAL §2M6.S.

amendment 686). Amended effective November 1. 2007 (see Appendix C. for example. amendment 633). or (B) conduct tantamount to the attempted murder of more than one victim. 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). violations of statutes dealing with rules and regulations. November 1. 1990 (see Appendix C. Background: This section applies to offenses related to nuclear energy not specifically addressed elsewhere. §2M6. § 2273.1 3.C. 2006 (see Appendix C. Violation of Other Federal Atomic Energy Agency Statutes. or serious bodily injury 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. (2) Commentary Statutory Provision: 42 U.S. and orders of the Nuclear Regulatory Commission and the Department of Energy. 1987. November 1. Amended effective November 1. 2002 (see Appendix C. November 1. November 1. and Regulations (a) Base Offense Level (Apply the greater): (1) 30. November 1.§2M6. or 6. 2009 Application of Special Instruction. This provision covers. Historical Note: Effective November 1. Historical Note: Effective November 1. – 286 – . 2001 (see Appendix C. license conditions. amendment 679). 2005 (see Appendix C. amendments 699 and 700). if the offense was committed with intent to injure the United States or to aid a foreign nation. amendment 637). 1987. GUIDELINES MANUAL November 1. life-threatening. 2003 (see Appendix C. amendment 359). Rules. amendment 655).2.

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

Historical Note: Effective November 1. Historical Note: Effective November 1. Tampering With Intent to Injure Business (a) Base Offense Level: 12 Commentary Statutory Provision: 18 U. amendment 338). Amended effective November 1. § 1365(b).S. or caused extreme psychological injury or substantial property damage or monetary loss.§2N1. bodily injury.C. Commentary Statutory Provisions: 18 U.2 (Extortion by Force or Threat of Injury or Serious Damage). an upward departure may be warranted.S. See Chapter Five. or causes. or is intended to cause. apply §2B3. an upward departure may be warranted. In the unusual case in which the offense did not cause a risk of death or serious bodily injury. a downward departure may be warranted. 2. and neither caused nor was intended to cause bodily injury.3. Where the offense posed a substantial risk of death or serious bodily injury to numerous victims. 1987. Application Note: 1.2. 1991 (see Appendix C. Providing False Information or Threatening to Tamper with Consumer Products (a) (b) Base Offense Level: 16 Cross Reference (1) If the offense involved extortion. Amended effective November 1. 2009 The base offense level reflects that this offense typically poses a risk of death or serious bodily injury to one or more victims. amendment 339).C. If death or bodily injury. 1990 (see Appendix C. (d). 1987. §2N1. – 288 – . § 1365(c). amendment 376). 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). or substantial property damage or monetary loss resulted. §2N1.1 Application Notes: 1. 1990 (see Appendix C. GUIDELINES MANUAL November 1. extreme psychological injury. Part K (Departures). November 1.

122.C. DRUGS. 42 U. AND CONSUMER PRODUCTS Historical Note: Effective November 1. §2N2. Property Destruction. If death or bodily injury. 134-134e. Agricultural Product. 620.C. (a)(2). (c) Cross References (1) If the offense involved fraud. an offense covered by another offense guideline. § 331 after sustaining a prior conviction under 21 U. 151-158. Violations of Statutes and Regulations Dealing With Any Food.1 Application Note: 1. 8313. Where only negligence was involved.S.1 (Theft. or to conceal.S. Part K (Departures). See Chapter Five. 7734. This guideline assumes a regulatory offense that involved knowing or reckless conduct.C. Biological Product. See Chapter Five. 642644. * * * * * 2. Part K (Departures). increase by 4 levels. 458-461. or Consumer Product (a) (b) Base Offense Level: 6 Specific Offense Characteristic (1) If the defendant was convicted under 21 U. Drug. 1987. AGRICULTURAL PRODUCTS. If the offense was committed in furtherance of. Application Notes: 1. see Appendix A (Statutory Index). – 289 – . 1987. 331. Cosmetic.S.S. 466. or substantial property damage or monetary loss resulted.November 1. amendment 733). 2009 (see Appendix C. 333(a)(1). 617. (b). Amended effective November 1. FOOD. Device.C. § 331. a downward departure may be warranted. and Fraud).C. extreme psychological injury.S. Historical Note: Effective November 1. 21 U. § 262. 619.1. 463. 6810. 676. 610. (2) Commentary Statutory Provisions: 7 U. 611. 150gg. 117. apply §2B1. §§ 150bb. §§ 115. 614. apply that other offense guideline if the resulting offense level is greater than that determined above. For additional statutory provision(s). an upward departure may be warranted. 2009 GUIDELINES MANUAL §2N2.

amendment 723). 2001 (see Appendix C. The cross reference at subsection (c)(2) addresses cases in which the offense was committed in furtherance of. (B) 4. Property Destruction. Commentary Statutory Provisions: 49 U. November 1. apply §2B1. amendment 661). 3. amendment 685). and Fraud) with "loss" measured by the amount paid. 2007 (see Appendix C. November 1. Property Destruction.C. § 7734. death. * * * * * 3. ODOMETER LAWS AND REGULATIONS §2N3. by the victim for such substance. 2002 (see Appendix C. In the case of an offense involving a substance purported to be an anabolic steroid. 2008 (see Appendix C. November 1. November 1. November 1. November 1.1 (Theft.C. – 290 – .. Part K (Departures). 2006 (see Appendix C. amendment 646). §§ 32703-32705.1. or bodily injury. or monetary loss resulted from the offense. property damage. extreme psychological injury.§2N2. 1992 (see Appendix C. November 1.S.S. 2009 The cross reference at subsection (c)(1) addresses cases in which the offense involved fraud.S. amendment 340).g. amendment 432). but not containing any active ingredient. or to be paid.C. Odometer Laws and Regulations (a) (b) Base Offense Level: 6 Cross Reference (1) If the offense involved more than one vehicle. 1990 (see Appendix C.1 2. See Chapter Five. amendment 733). GUIDELINES MANUAL November 1. Amended effective November 1. The Commission has not promulgated a guideline for violations of 21 U. 1991 (see Appendix C. amendment 451). November 1. Part D (Offenses Involving Drugs and Narco-Terrorism). 2009 (see Appendix C. 1987. apply §2B1. amendment 617). Historical Note: Effective November 1. 2003 (see Appendix C.—The following are circumstances in which an upward departure may be warranted: (A) The offense created a substantial risk of bodily injury or death. or to conceal. Upward Departure Provisions. Offenses involving anabolic steroids are covered by Chapter Two. amendment 711). November 1. and Fraud). 32709(b).1 (Theft. The defendant was convicted under 7 U. bribery). an offense covered by another offense guideline (e. § 333(e) (offenses involving human growth hormones).

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

see Appendix A (Statutory Index). committed any federal.OFFENSES INVOLVING PRISONS AND CORRECTIONAL FACILITIES §2P1. Instigating or Assisting Escape (a) Base Offense Level: (1) 13. otherwise. where a defendant failed to return to any institution from a pass or unescorted furlough.1(a)(1) by 7 levels or the offense level under §2P1. (2) (b) Specific Offense Characteristics (1) If the use or the threat of force against any person was involved.C. 2009 PART P . where a defendant walked away from a work detail outside the security perimeter of an institution. or where a defendant escaped from an institution with no physical perimeter barrier). Provided. increase by 2 levels. If the defendant escaped from the non-secure custody of a community corrections center. "halfway house. Provided. § 1826. 755.1(a)(2) by 4 levels. 8. at the time of the offense. decrease the offense level under §2P1. if the custody or confinement is by virtue of an arrest on a charge of felony.1. 28 U. and subsection (b)(2) is not applicable.. or an employee of the Department of Justice. that this reduction shall not apply if the defendant. however. decrease the offense level under subsection (a)(1) by 4 levels or the offense level under subsection (a)(2) by 2 levels. or conviction of any offense. that this reduction shall not apply if the defendant. or local offense punishable by a term of imprisonment of one year or more. Application Notes: 1. §§ 751. (2) (3) (4) Commentary Statutory Provisions: 18 U.S. increase by 5 levels. or local offense punishable by a term of imprisonment of one year or more.1 GUIDELINES MANUAL November 1. while away from the facility. community treatment center. "Non-secure custody" means custody with no significant physical restraint (e. committed any federal." or similar facility. however. For additional statutory provision(s). 752. If the defendant was a law enforcement or correctional officer or employee. state. while away from the facility. Escape.§2P1. state. – 292 – .S.C.g. If the defendant escaped from non-secure custody and returned voluntarily within ninety-six hours.

or security of the institution or the life. 6. United States or foreign currency. 6. or a narcotic drug.November 1. and §4A1. (3) (4) (b) Specific Offense Characteristic (1) If the defendant was a law enforcement or correctional officer or employee. §2P1. Historical Note: Effective November 1. do not apply §3A1. Part K (Departures). LSD. 1990 (see Appendix C.3 (Abuse of Position of Trust or Use of Special Skill). Amended effective November 1. November 1. or safety of an individual. If the adjustment in subsection (b)(4) applies.2 (Official Victim).1(b) (for the sentence being served at the time of the escape). at the time of the offense. November 1. PCP. 1989 (see Appendix C. if the object was a weapon (other than a firearm or a destructive device). methamphetamine. amendments 200 and 201). no adjustment is to be made under §3B1. or a narcotic drug). 13. or a controlled substance (other than LSD. §4A1. or an employee of the Department of Justice. Providing or Possessing Contraband in Prison (a) Base Offense Level: (1) (2) 23. See Chapter Five. If death or bodily injury resulted. If the adjustment in subsection (b)(1) applies as a result of conduct that involves an official victim. amendment 406). amendment 341). 1991 (see Appendix C. increase by 2 levels. criminal history points from §4A1. if the object was an alcoholic beverage. 2009 GUIDELINES MANUAL §2P1. any object that might be used as a weapon or as a means of facilitating escape. Criminal history points under Chapter Four.2 2. methamphetamine. health. 5.1(d) (custody status). "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).2. if the object was any other object that threatened the order. in the case of a defendant serving a one-year sentence of imprisonment at the time of the escape. Part A (Criminal History) are to be determined independently of the application of this guideline. 3. 4. 1987. 4. PCP. an upward departure may be warranted. For example. – 293 – . discipline.1(e) (recency) would be applicable. ammunition. if the object was a firearm or destructive device.

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

1987. if the offense involved a major disruption to the operation of an institution.4. otherwise. an upward departure may be warranted. Part K (Departures). 2009 GUIDELINES MANUAL §2P1.S. 10.4 (Trespass on Bureau of Prisons Facilities). effective November 1. – 295 – .3.C. was deleted effective November 1.November 1. Historical Note: Effective November 1.4 §2P1. amendment 204). 1989 (see Appendix C. §2P1. [Deleted] Historical Note: Section 2P1. if the offense was committed under circumstances creating a substantial risk of death or serious bodily injury to any person. 1987. If death or bodily injury resulted. (2) (3) Commentary Statutory Provision: 18 U. 16. Application Note: 1. See Chapter Five. Inciting or Attempting to Incite a Riot Involving Persons in a Facility for Official Detention (a) Base Offense Level: (1) 22. Engaging In. § 1792.

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

. § 9601(14)). "Toxic" and "hazardous" are defined differently in various statutes. (c). releases. but the common dictionary meanings of the words are not significantly different.C. 1321(b)(5). and pesticides. 15 U. These lists. 1822(b). Several federal statutes (or regulations promulgated thereunder) list toxics. In cases involving negligent conduct.S. or disposal without a permit or in violation of a permit. Except when the adjustment in subsection (b)(6) for simple recordkeeping offenses applies. A listing of hazardous and toxic substances in the guidelines would be impractical. Depending – 297 – 2. § 5124 or § 46312.November 1. 1816(a). are revised from time to time. §§ 1350. or emissions where required.2 (4) If the offense involved transportation. §§ 1319(c)(1). 33 U. §§ 5124. (5) (6) (7) Commentary Statutory Provisions: 7 U. or provide records as prescribed. A wide range of conduct. 43 U. The term is to be broadly construed as including failure to report discharges. 4. §§ 300h-2. § 1317) as well as the designation of hazardous substances under the Comprehensive Environmental Response. increase by 4 levels. 5. 3.C.S.S.S.C..C. (2). 33 U. potentially is covered.. 49 U.C. maintain. §§ 136j-136l.C. 6928(d).g.g. storage. "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. treatment.S. this section assumes knowing conduct. This section applies to offenses involving pesticides or substances designated toxic or hazardous at the time of the offense by statute or regulation.S. 7413.C. failure to file other required reports or provide necessary information. "Recordkeeping offense" includes both recordkeeping and reporting offenses. If a recordkeeping offense reflected an effort to conceal a substantive environmental offense. hazardous wastes and substances. such as those of toxic pollutants for which effluent standards are published under the Federal Water Pollution Control Act (e. use the offense level for the substantive offense. 42 U. increase by 2 levels. 46312.C. a downward departure may be warranted. Compensation and Liability Act (e. If the defendant was convicted under 49 U. 2009 GUIDELINES MANUAL §2Q1. For additional statutory provision(s). involving the handling of different quantities of materials with widely differing propensities. 1517(b). see Appendix A (Statutory Index). 42 U. the giving of false information. §§ 2614 and 2615. and failure to prepare. decrease by 2 levels. If the offense involved a simple recordkeeping or reporting violation only. (d).C. Application Notes: 1. Subsection (b)(1) assumes a discharge or emission into the environment resulting in actual environmental contamination.S. 9603(b).S.

or to retaliate against government conduct. a departure of up to two levels in either direction from the offense levels prescribed in these specific offense characteristics may be appropriate. The last two specific offense characteristics apply to recordkeeping offenses.—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. November 1. 1987. Other Upward Departure Provisions. a departure of up to two levels either upward or downward may be warranted. however. 7. amendment 553). a departure of up to three levels upward or downward may be warranted. Depending upon the nature and quantity of the substance involved and the risk associated with the offense.4 (Terrorism).—If the offense caused extreme psychological injury. a departure of up to two levels either upward or downward could be warranted. See §4A1. 8. Although other sections of the guidelines generally prescribe a base offense level of 6 for regulatory violations. §2Q1. an upward departure would be warranted. evacuation or cleanup at substantial expense has been required. Depending upon the nature of the contamination involved. Subsection (b)(4) applies where the offense involved violation of a permit. Subsection (b)(2) applies to offenses where the public health is seriously endangered. release or discharge.— (A) Civil Adjudications and Failure to Comply with Administrative Order. a departure would be called for.3 (Extreme Psychological Injury). Terrorism. an upward departure may be warranted. Historical Note: Effective November 1. Extreme Psychological Injury. Depending upon the nature of the risk created and the number of people placed at risk. or where there was a failure to obtain a permit when one was required. Subsection (b)(3) provides an enhancement where a public disruption. See Application Note 4 of the Commentary to §3A1. Part K (Departures). amendment 672).—If the offense was calculated to influence or affect the conduct of government by intimidation or coercion.§2Q1. A decrease of 2 levels is provided. an upward departure may be warranted. If death or serious bodily injury results. (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. amendment 481). the quantity and nature of the substance or pollutant. 1997 (see Appendix C. See §5K2. 9. – 298 – . 2009 upon the harm resulting from the emission.2(b)(6).2 prescribes a base offense level of 8 because of the inherently dangerous nature of hazardous and toxic substances and pesticides. the duration of the offense and the risk associated with the violation. November 1. See Chapter Five. Amended effective November 1. for "simple recordkeeping or reporting violations" under §2Q1. 1993 (see Appendix C. 6. The first four specific offense characteristics provide enhancements when the offense involved a substantive violation.2 GUIDELINES MANUAL November 1. 2004 (see Appendix C.3 (Departures Based on Inadequacy of Criminal History Category).

Application Notes: 1.3. Subsection (b)(1) assumes a discharge or emission into the environment resulting in actual environmental contamination. or repetitive discharge. use the offense level for the substantive offense. or emission of a pollutant. increase by 6 levels. see Appendix A (Statutory Index). 411. 42 U. or emission of a pollutant into the environment. If the offense resulted in disruption of public utilities or evacuation of a community. or if the offense otherwise involved a discharge. A wide range of conduct. (B) (2) If the offense resulted in a substantial likelihood of death or serious bodily injury. 3. The term is to be broadly construed as including failure to report discharges. 1907. Recordkeeping. The specific offense characteristics in this section assume knowing conduct. 1908. If the offense involved mishandling of nuclear material. involving the handling of different quantities of materials with widely differing propensities. increase by 4 levels. or provide records as prescribed. or emissions where required. releases. §§ 403. For additional statutory provision(s). increase by 4 levels. 2009 GUIDELINES MANUAL §2Q1. continuous. (c)(2). Mishandling of Other Environmental Pollutants.C.C. § 7413. a downward departure may be warranted. or if cleanup required a substantial expenditure. 1319(c)(1). . If a recordkeeping offense reflected an effort to conceal a substantive environmental offense.November 1. release. If the offense involved a discharge without a permit or in violation of a permit. increase by 11 levels. increase by 4 levels. 407. 406. 4. Tampering.2 (Violation of Other Federal Atomic Energy Agency Statutes. and Regulations) rather than this guideline. the giving of false information. 1415(b). and failure to prepare. "Recordkeeping offense" includes both recordkeeping and reporting offenses. In cases involving negligent conduct. Depending – 299 – 2.3 §2Q1. release. maintain. potentially is covered. failure to file other required reports or provide necessary information.S. and Falsification (a) (b) Base Offense Level: 6 Specific Offense Characteristics (1) (A) If the offense resulted in an ongoing. Rules. apply §2M6.S. (3) (4) (5) Commentary Statutory Provisions: 33 U.

a departure of up to two levels in either direction could be warranted. a departure of up to three levels upward or downward may be warranted.4. or 16. Part K (Departures). amendment 205). 6. 22. 7. 5.§2Q1. a departure of up to two levels in either direction may be warranted. Threatening to Tamper with a Public Water System (a) Base Offense Level (Apply the greatest): (1) (2) 26.2 but applies to offenses involving substances which are not pesticides and are not designated as hazardous or toxic. Depending upon the nature of the risk created and the number of people placed at risk. 1989 (see Appendix C. Subsection (b)(2) applies to offenses where the public health is seriously endangered. the quantity and nature of the substance or pollutant. 8. See Chapter Five. Amended effective November 1.3 GUIDELINES MANUAL November 1. an upward departure may be warranted. or where there was a failure to obtain a permit when one was required. and (B) any conduct evidencing an intent to carry out the threat. Subsection (b)(3) provides an enhancement where a public disruption. Depending upon the nature of the contamination involved. evacuation or cleanup at substantial expense has been required. Depending upon the nature and quantity of the substance involved and the risk associated with the offense. §2Q1. Tampering or Attempted Tampering with a Public Water System. See §4A1. 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. – 300 – .3 (Adequacy of Criminal History Category). the duration of the offense and the risk associated with the violation. (B) any victim sustained serious bodily injury. if the offense involved (A) a threat to tamper with a public water system. If death or serious bodily injury results. a departure would be called for. 1987. increase by 4 levels. Where a defendant has previously engaged in similar misconduct established by a civil adjudication or has failed to comply with an administrative order. Background: This section parallels §2Q1. Historical Note: Effective November 1. a departure of up to two levels in either direction from that prescribed in these specific offense characteristics may be appropriate. Subsection (b)(4) applies where the offense involved violation of a permit. release or discharge. 2009 upon the harm resulting from the emission. (3) (b) Specific Offense Characteristics (1) If (A) any victim sustained permanent or life-threatening bodily injury.

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

§2Q1. [Deleted] Historical Note: Effective November 1. a downward departure may be warranted. 3. amendment 655). an upward departure would be warranted. If the intent was to obstruct the harvesting of timber. Amended effective November 1.5. amendment 206). November 1. (B) §2Q1.— (A) Downward Departure Provision. 2003 (see Appendix C. Historical Note: Effective November 1. apply §2B1.—If the offense caused extreme psychological injury. If the offense was calculated to influence or affect the conduct of government by intimidation or coercion. See Application Note 4 of §3A1. 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 – . an upward departure may be warranted.1 (Theft. or cause. or caused substantial property damage or monetary loss. Amended 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). Attempt or Conspiracy). Departure Provisions. 2009 more than one victim. In the unusual case in which such an offense did not cause a risk of death or serious bodily injury. 1987. was deleted by consolidation with §2Q1. amendment 207).—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. or to retaliate against government conduct. 1989 (see Appendix C. Upward Departure Provisions. and neither caused nor was intended to cause bodily injury.4 GUIDELINES MANUAL November 1. amendment 655). 2003 (see Appendix C.§2Q1. or are intended to cause. 1989 (see Appendix C.6. bodily injury.9 (Placing or Maintaining Dangerous Devices on Federal Property to Protect the Unlawful Production of Controlled Substances. and property destruction resulted. and Fraud).4 effective November 1.4 (Terrorism). apply §2D1. 1987. Property Destruction. 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.

000 but did not exceed $5. * * * * * 2. amendment 617). or (4) 6. and Fraud) corresponding to that amount. wildlife.C. or plants (i) exceeded $2. 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. fish.000. CONSERVATION AND WILDLIFE §2Q2. Property Destruction. or – 303 – (2) (3) .2 (Aggravated Assault). 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. 1989 (see Appendix C. Wildlife. increase by the number of levels from the table in §2B1. November 1. or plants that were not quarantined as required by law. or (B) otherwise created a significant risk of infestation or disease transmission potentially harmful to humans. (If more than one applies.1 circumstances manifesting extreme indifference to such risk. 2001 (see Appendix C.1 (Theft.1. § 1864. or (B) involved a pattern of similar violations.November 1. 2009 GUIDELINES MANUAL §2Q2. Offenses Involving Fish. 2002 (see Appendix C. Amended effective November 1. amendment 313). Commentary Statutory Provision: 18 U. amendment 208). increase by 2 levels. 1990 (see Appendix C. Background: The statute covered by this guideline proscribes a wide variety of conduct. 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. or (ii) exceeded $5. otherwise. wildlife. Historical Note: Effective November 1. amendment 646).S. use the greater): (A) If the market value of the fish. If the offense (A) involved fish. November 1. the offense level from §2A2. or plants. increase by 2 levels.000. Subsections (a)(1)-(a)(3) cover the more serious forms of this offense. increase by 1 level.

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

November 1. wildlife. amendment 407). [Deleted] Historical Note: Section 2Q2. November 1. November 1. amendment 209). the Marine Mammal Protection Act. or Receipt of Cultural Heritage Resources). and to violations of 18 U. November 1. effective November 1. November 1. "cultural heritage resource" has the meaning given that term in Application Note 1 of the Commentary to §2B1. Amended effective January 15.5 (Theft of.S.2 6. Unlawful Sale.C. Transportation. amendments 209 and 210). amendment 700). Damage to. the Bald Eagle Protection Act. 1987. 2009 GUIDELINES MANUAL §2Q2. November 1. – 305 – . 2007 (see Appendix C. Cultural Heritage Resources. the Lacey Act. 1995 (see Appendix C. the Migratory Bird Treaty. the Wild FreeRoaming Horses and Burros Act. 1987. was deleted by consolidation with §2Q2. November 1. the Fur Seal Act. For purposes of subsection (c)(1). 1992 (see Appendix C. amendment 41). §2Q2. §§ 545 and 554 if the smuggling activity involved fish. amendment 617). 1988 (see Appendix C. amendment 638).1 effective November 1. November 1. or Destruction of.2. and Plants). Wildlife. Historical Note: Effective November 1. Exchange. amendment 534). Purchase.2 (Lacey Act. or plants. 2001 (see Appendix C. 1989 (see Appendix C. 2002 (see Appendix C. Background: This section applies to violations of the Endangered Species Act. amendment 452). Smuggling and Otherwise Unlawfully Dealing in Fish. 1991 (see Appendix C. 1989 (see Appendix C.

combined offense level.000 More than $1. the volume of commerce should be treated cumulatively to determine a single.000.000 More than $100.500.000 Adjustment to Offense Level add 2 add 4 add 6 add 8 add 10 add 12 add 14 add 16. (c) Special Instruction for Fines (1) For an individual.000. the guideline fine range shall be from one to five percent of the volume of commerce.75.Organizations (1) In lieu of the pecuniary loss under subsection (a)(3) of §8C2. (d) Special Instructions for Fines .000. In a bid-rigging case in which the organization submitted one or more complementary bids. adjust the offense level as follows: Volume of Commerce (Apply the Greatest) (A) (B) (C) (D) (E) (F) (G) (H) More than $1.000 More than $250.000 More than $1.000 More than $10.000. but not less than $20.ANTITRUST OFFENSES §2R1.000.000 More than $500. use 20 percent of the volume of affected commerce.000.6 (Minimum and Maximum Multipliers). If the volume of commerce attributable to the defendant was more than $1. 2009 PART R .§2R1. use as the organization’s volume of commerce the – 306 – (2) (3) .000.4 (Base Fine).000. increase by 1 level.000. neither the minimum nor maximum multiplier shall be less than 0. 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. (2) For purposes of this guideline.000.1.000. When multiple counts or conspiracies are involved.000 More than $40. When applying §8C2. Bid-Rigging.1 GUIDELINES MANUAL November 1. 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.

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

1 6. the minimum multiplier is at least 0. Under the guidelines. only one guideline.. 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. The court will have the discretion to impose considerably longer sentences within the guideline ranges. 2009 Understatement of seriousness is especially likely in cases involving complementary bids. however. Consequently. without any inquiry in individual cases as to their actual competitive effect. prison terms for these offenders should be much more common. his volume of commerce would be zero. Part E (Acceptance of Responsibility) and. For an organization. The agreements among competitors covered by this section are almost invariably covert conspiracies that are intended to.§2R1. nonetheless. Chapter Three. For this reason. See §4A1. and usually somewhat longer. There is no consensus. 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. Adjustments will not affect the level of fines. Part B (Role in the Offense).e. which deals with horizontal agreements in restraint of trade. The Commission believes that the volume of commerce is liable to be an understated measure of seriousness in some bid-rigging cases. restrict output and raise prices. in very few cases will the guidelines not require that some confinement be imposed. can cause serious economic harm. the guideline fine range is from one to five percent of the volume of commerce. in exchange for his being allowed to win a subsequent bid that he did not in fact win. there is near universal agreement that restrictive agreements among competitors. This – 308 – . or an upward departure. may be warranted. the guidelines require some period of confinement in the great majority of cases that are prosecuted. GUIDELINES MANUAL November 1. The court should consider sentences near the top of the guideline range in such cases. may decrease these minimum sentences. than typical under pre-guidelines practice. i.75. Substantial fines are an essential part of the sentence. Although they are not unlawful in all countries. the Commission has specified a 1-level increase for bid-rigging. for example. on one occasion. such as horizontal price-fixing (including bid-rigging) and horizontal marketallocation. a sentence at the maximum of the applicable guideline range.000. and consistent with pre-guidelines practice. but not less than $20. which furthermore are rarely prosecuted and may involve unsettled issues of law. but pursuant to subsection (d)(2). If. the guideline fine range is determined under Chapter Eight (Sentencing of Organizations). Absent adjustments. Background: These guidelines apply to violations of the antitrust laws. or to submit an unreasonably high bid. in rare instances. about the harmfulness of other types of antitrust offenses. and that are so plainly anticompetitive that they have been recognized as illegal per se. The volume of commerce is an acceptable and more readily measurable substitute. Adjustments from Chapter Three. the defendant participated in an agreement not to submit a bid. including all bid-rigging cases. For an individual. In the case of a defendant with previous antitrust convictions. although he would have contributed to harm that possibly was quite substantial. 7. has been promulgated. 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. and serve no purpose other than to.3 (Adequacy of Criminal History Category).

1989 (see Appendix C. 1991 (see Appendix C. amendment 661). amendment 674).1 multiplier. November 1. – 309 – . The Commission believes that most antitrust defendants have the resources and earning capacity to pay the fines called for by this guideline. Historical Note: Effective November 1. November 1. November 1. this minimum multiplier maintains incentives for desired organizational behavior. Because the Department of Justice has a well-established amnesty program for organizations that self-report antitrust offenses.75 ensures that fines imposed in antitrust cases will exceed the average monopoly overcharge. A minimum multiplier of at least 0. no lower minimum multiplier is needed as an incentive for self-reporting. was selected to provide an effective deterrent to antitrust offenses. At the same time. at least over time on an installment basis. amendments 377 and 422). 2004 (see Appendix C. 2003 (see Appendix C. which requires a minimum fine of 15 percent of the volume of commerce for the least serious case. Amended effective November 1. November 1. 2009 GUIDELINES MANUAL §2R1. amendments 211 and 303). 1987. amendment 678). 2005 (see Appendix C.November 1.

C. If the defendant was convicted under 18 U. or (iii) an offense involving firearms. 2009 PART S . and (B) the offense level for that offense can be determined.MONEY LAUNDERING AND MONETARY TRANSACTION REPORTING Historical Note: Introductory Commentary to this Part. and (B) the defendant knew or believed that any of the laundered funds were the proceeds of. Property Destruction. and (B) the offense involved sophisticated laundering.§2S1. otherwise. effective November 1. increase by 1 level. increase by 4 levels. explosives. 1987. and (ii) the defendant was in the business of laundering funds. or the sexual exploitation of a minor. increase by 2 levels.1 GUIDELINES MANUAL November 1. importation. national security. If (i) subsection (a)(2) applies. (2) (B) (C) (3) If (A) subsection (b)(2)(B) applies. (Apply the Greatest): (A) If the defendant was convicted under 18 U.1 (Theft.S. (ii) a crime of violence.C. §2S1. 1990 (see Appendix C. increase by 2 levels. or 8 plus the number of offense levels from the table in §2B1. or were intended to promote (i) an offense involving the manufacture. or distribution of a controlled substance or a listed chemical. amendment 342). (2) (b) Specific Offense Characteristics (1) If (A) subsection (a)(2) applies. § 1957. increase by 6 levels. Laundering of Monetary Instruments.S. – 310 – .1. and Fraud) corresponding to the value of the laundered funds. 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. was deleted effective November 1.3 (Relevant Conduct)). § 1956.

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

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

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

§ 5318 or § 5318A. (b) Specific Offense Characteristics (1) If (A) the defendant knew or believed that the funds were proceeds of unlawful activity. § 1960 (but only with respect to unlicensed money transmitting businesses as defined in 18 U. 2009 Structuring Transactions to Evade Reporting Requirements.S. 5318.S. – 314 – . or 6 plus the number of offense levels from the table in §2B1.S.C. §§ 7203 (if a violation based upon 26 U. 5326. 5314. apply the most appropriate guideline from Chapter Two. and Fraud) corresponding to the value of the funds. 31 U. Bulk Cash Smuggling. Property Destruction. Failure to Report Cash or Monetary Transactions. or were intended to promote unlawful activity. 26 U. increase by 2 levels.3 §2S1. GUIDELINES MANUAL November 1.S.C.S.C. (C) the funds were the proceeds of lawful activity.C. 5316.§2S1. United States Code. 5331. and (D) the funds were to be used for a lawful purpose. 5322. Part T (Offenses Involving Taxation) if the resulting offense level is greater than that determined above. 7206 (if a violation based upon 26 U. if subsection (a)(1) does not apply. § 6050I). Establishing or Maintaining Prohibited Accounts (a) Base Offense Level: (1) (2) 8. § 6050I).1 (Theft. (2) (3) (c) Cross Reference (1) If the offense was committed for the purposes of violating the Internal Revenue laws. 5332. if the defendant was convicted under 31 U. (B) the defendant did not act with reckless disregard of the source of the funds. 5318A(b). or (B) the offense involved bulk cash smuggling. Commentary Statutory Provisions: 18 U.C.S. and (B) committed the offense as part of a pattern of unlawful activity involving more than $100. For additional statutory provision(s). Failure to File Currency and Monetary Instrument Report.C. decrease the offense level to level 6. § 1960(b)(1)(A) and (B)).000 in a 12-month period.C.S. see Appendix A (Statutory Index).3. If the defendant (A) was convicted of an offense under subchapter II of chapter 53 of title 31. If (A) subsection (a)(2) applies and subsections (b)(1) and (b)(2) do not apply. Knowingly Filing False Reports. increase by 2 levels. §§ 5313. 5324.

November 1. November 1. reporting and identification requirements. "value of the funds" means the amount of the funds involved in the structuring or reporting conduct. § 5316.000 in a 12-month period. Enhancement for Pattern of Unlawful Activity. Bulk Cash Smuggling.4. 1991 (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. more than $10.000 Received in a Trade or Business. 1987. November 1. "United States" has the meaning given that term in Application Note 1 of the Commentary to §2B5. amendment 637). 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. Amended effective November 1.—For purposes of subsection (b)(2).3 effective November 1. [Deleted] Historical Note: Section 2S1.S.—For purposes of this guideline.November 1. The relevant statutes require monetary reporting without regard to whether the funds were lawfully or unlawfully obtained.4 (Failure to File Currency and Monetary Instrument Report). "bulk cash smuggling" means (A) knowingly concealing. Reports of Foreign Bank and Financial Accounts. amendment 655). and Reports of Cash Payments Over $10.1 (Offenses Involving Counterfeit Bearer Obligations of the United States). was deleted by consolidation with §2S1.4 Application Notes: 1. effective November 1. amendment 490). 2002 (see Appendix C. 2003 (see Appendix C. Historical Note: Effective November 1.—For purposes of subsection (b)(1)(B). with the intent to evade a currency reporting requirement under 31 U. 3. 1993 (see Appendix C. 1991 (see Appendix C. amendment 490).C.000 in currency or other monetary instruments.C. and foreign banks. amendments 617 and 634). foreign institutions. 1993 (see Appendix C. amendments 216-218). "pattern of unlawful activity" means at least two separate occasions of unlawful activity involving a total amount of more than $100. and (B) transporting or transferring (or attempting to transport or transfer) such currency or monetary instruments into or outside of the United States. – 315 – . November 1. pertaining to records. Definition of "Value of the Funds". 2009 GUIDELINES MANUAL §2S1. §§ 5318 and 5318A. 2. §2S1. November 1. 2001 (see Appendix C.S. and other types of transactions and types of accounts. 1989 (see Appendix C. amendments 379 and 422). prohibited accounts involving certain foreign jurisdictions. This guideline also covers offenses under 31 U. amendments 379 and 422). These reports include Currency Transaction Reports. Currency and Monetary Instrument Reports.

or Other Documents (a) Base Offense Level: (1) (2) (b) Level from §2T4. If the resulting offense level is less than level 12.e. EMPLOYMENT TAXES.. increase to level 12. the tax loss is the total amount of loss that was the object of the offense (i. – 316 – . or 6. §2T1. the loss that would have resulted had the offense been successfully completed). (2) (c) Special Instructions For the purposes of this guideline -(1) If the offense involved tax evasion or a fraudulent or false return. TOBACCO.§2T1. if there is no tax loss. Supply Information. 1987. 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. Introductory Commentary The criminal tax laws are designed to protect the public interest in preserving the integrity of the nation’s tax system. AND CUSTOMS TAXES) Historical Note: Effective November 1. AND EXCISE TAXES (OTHER THAN ALCOHOL. 2009 PART T . Amended effective November 1. 1987.1 GUIDELINES MANUAL November 1. INCOME TAXES. statement. Tax Evasion. or Pay Tax. increase by 2 levels. Specific Offense Characteristics (1) If the defendant failed to report or to correctly identify the source of income exceeding $10. Historical Note: Effective November 1. Willful Failure to File Return. increase by 2 levels. Fraudulent or False Returns.1. amendment 491). Because of the limited number of criminal tax prosecutions relative to the estimated incidence of such violations.1 (Tax Table) corresponding to the tax loss. Statements. increase to level 12. If the offense involved sophisticated means.000 in any year from criminal activity. deterring others from violating the tax laws is a primary consideration underlying these guidelines. or other document. GIFT TAXES. Criminal tax prosecutions serve to punish the violator and promote respect for the tax laws.OFFENSES INVOLVING TAXATION 1. If the resulting offense level is less than level 12. 1993 (see Appendix C. ESTATE TAXES.

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

Example 1: A defendant files a tax return reporting income of $40. 2. Example 2: A defendant files a tax return reporting income of $60. If none of the methods of determining the tax loss set forth fit the circumstances of the particular case. § 6050I or § 7206(2)). and $2. For additional statutory provision(s). In determining the total tax loss attributable to the offense (see §1B1.600 ($130. "Tax loss" is defined in subsection (c). and 7207. the tax loss is treated as $14.C. minus $2.1 GUIDELINES MANUAL November 1.C. In addition.800. the guidelines contemplate that the court will simply make a reasonable estimate based on the available facts.600 of tax withheld) unless sufficient information is available to make a more accurate assessment of the tax loss.000 in false tax credits.000 of actual gross income minus $40. In some instances.000 x 28% = $19.S. 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.000 of reported gross income = $50.S.200 ($24.C.000 x 28%) unless sufficient information is available to make a more accurate assessment of the tax loss.S. In cases involving other types of taxes.§2T1. 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. the defendant claims $10.S.000 of actual gross income minus $60.C. The tax loss does not include interest or penalties. Example 3: A defendant fails to file a tax return for a year in which his salary was $24.3(a)(2)).S. In these situations. Under the note to subsection (c)(2). the presumptions in the notes under subsections (c)(1) and (c)(2) do not apply.000. §§ 7201. such as when indirect methods of proof are used." its amount is to be determined by the same rules applicable in determining any other sentencing factor. Under Note (A) to subsection (c)(1).000. Under Note (A) to subsection (c)(1).600.000 when his income was actually $130. except in willful evasion of payment cases under 26 U. § 7203. 7203 (other than a violation based upon 26 U. 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.C. see Appendix A (Statutory Index). 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.000 of reported gross income = $70.000.000 of gross income x 20% = $4. the tax loss is treated as $2. Although the definition of tax loss corresponds to what is commonly called the "criminal figures.600 in income tax was withheld by his employer. § 7201 and willful failure to pay cases under 26 U.000 ($90. In determining the tax loss attributable to the offense. 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. 7206 (other than a violation based upon 26 U. § 6050I). all conduct violating the tax laws should be considered as part of the same course of conduct or common – 318 – . Application Notes: 1. the tax loss is treated as $29. 2009 Commentary Statutory Provisions: 26 U. plus $10.000 when his income was actually $90.

"Criminal activity" means any conduct constituting a criminal offense under federal. Conduct such as hiding assets or transactions. "sophisticated means" means especially complex or especially intricate offense conduct pertaining to the execution or concealment of an offense.000 ($100.. local.F.000 on the corporation’s tax return. diverts the funds to the defendant’s own use.000 multiplied by 28%). e. if sufficient information is available to make a more accurate assessment of that tax rate. 3. state. the sanction necessary to deter also increases. and (B) the unreported or diverted amount multiplied by (i) 34%.November 1.000 multiplied by 34%). the sole owner of a Subchapter C corporation. through the use of fictitious entities.61. if sufficient information is available to make a more accurate assessment of that tax rate. a "deduction" is an item that reduces the amount of taxable income. Accordingly. has the same meaning as it has in 26 U. These examples are not intended to be exhaustive. however. e." for the purposes of this section. interest from savings accounts or income from a particular business activity. The tax loss attributable to the defendant’s corporate tax return is $34.000 ($100. the tax loss is the sum of (A) the unreported or diverted amount multiplied by (i) 28%.. or (ii) the tax rate for the individual tax offense. 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. 5. fraudulently understates the corporation’s income in the amount of $100.000 ($34.000 + $28. backdating documents or using off-shore accounts.— For purposes of subsection (b)(2). The tax loss for the offenses are added together to equal $62. and (e) the violation in each instance involves a failure to report or an understatement of a specific source of income.C. For purposes of this example. assume the use of 34% with respect to the corporate tax loss and the use of 28% with respect to the individual tax loss. Background: This guideline relies most heavily on the amount of loss that was the object of the offense. or (ii) the tax rate for the corporate tax offense. (d) the violation in each instance involves a false or inflated claim of a similar deduction or credit. as the potential benefit from the offense increases. – 319 – . (c) the violations involve the same or a related series of transactions. If the offense involved both individual and corporate tax returns. 2009 GUIDELINES MANUAL §2T1. and does not report these funds on the defendant’s individual tax return. In contrast. in and of themselves. § 61 and 26 C. Furthermore. the defendant. (b) the defendant uses a consistent method to evade or camouflage income. are serious offenses. Sophisticated Means Enhancement. A "credit claimed against tax" is an item that reduces the amount of tax directly. or foreign law. or offshore financial accounts ordinarily indicates sophisticated means.S. 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. § 1. 7. Tax offenses. corporate shells. the tax loss is the aggregate tax loss from the individual tax offense and the corporate tax offense added together.g. or both. a greater tax loss is obviously more harmful to the treasury and more serious than a smaller one with otherwise similar characteristics. 6. The tax loss attributable to the defendant’s individual tax return is $28.1 scheme or plan unless the evidence demonstrates that the conduct is clearly unrelated. "Gross income.000). 4.g.R.

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

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

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.1 (Theft. Application Note: 1. Failing to Collect or Truthfully Account for and Pay Over Tax (a) Base Offense Level: Level from §2T4. apply §2B1. Amended effective November 1. or Other Documents). [Deleted] Historical Note: Section 2T1. November 1. 1987. November 1. it is both tax evasion and a form of embezzlement. Historical Note: Effective November 1. amendment 577). (b) Commentary Statutory Provision: 26 U. 1993 (see Appendix C. Property Destruction. 1987.1 (Tax Table) corresponding to the tax not collected or accounted for and paid over. amendment 491). Where no effort is made to defraud the employee. Other considerations are similar to those in §2T1. effective November 1. 2001 (see Appendix C. 1998 (see Appendix C.1 effective November 1. §2T1. Subsection (b)(1) addresses such cases. The failure to collect or truthfully account for the tax must be willful.1. November 1. 2001 (see Appendix C. 1993 (see Appendix C. amendment 617).4 GUIDELINES MANUAL November 1.S. Historical Note: Effective November 1.6. 1989 (see Appendix C. as must the failure to pay. amendment 409). and is treated as such in the guidelines. November 1.5 (Fraudulent Returns. Background: The offense is a felony that is infrequently prosecuted. 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. 1987. November 1. 1991 (see Appendix C. 1989 (see Appendix C. Statements. and Fraud) if the resulting offense level is greater than that determined above.C. but also collected the tax from employees and did not account to them for it. §2T1. 1990 (see Appendix C. amendment 491).5. § 7202. In the event that the employer not only failed to account to the Internal Revenue Service and pay over the tax. amendment 232). Amended effective November 1. November 1. amendment 617). amendment 343). amendments 231 and 303). was deleted by consolidation with §2T1.§2T1. – 322 – .

C. 7512(b). Historical Note: Effective November 1. It is recommended that the fine be based on the total amount of funds not deposited. Background: This offense is a misdemeanor that does not require any intent to evade taxes. Failing to Deposit Collected Taxes in Trust Account as Required After Notice (a) Base Offense Level (Apply the greater): (1) (2) 4.S. 7205. 1987. 2009 GUIDELINES MANUAL §2T1. rather than merely delay. an upward departure may be warranted.8.S. Application Note: 1. 1987. Commentary Statutory Provisions: 26 U. This offense should be relatively easy to detect and fines may be feasible.C. – 323 – .S. 2.8 §2T1. imprisonment was unusual. If the defendant was attempting to evade. Application Notes: 1. Amended effective November 1. Historical Note: Effective November 1. or 5 less than the level from §2T4.7. §2T1. amendment 674). 2004 (see Appendix C. § 7202 (see §2T1. Under pre-guidelines practice. payment of taxes.November 1. Background: The offenses are misdemeanors. they should be treated as never having been deposited. Offenses Relating to Withholding Statements (a) Base Offense Level: 4 Commentary Statutory Provisions: 26 U. the offense level has been set considerably lower than for tax evasion.1 (Tax Table) corresponding to the amount not deposited. §§ 7204.6). §§ 7215. If funds are deposited and withdrawn without being paid to the Internal Revenue Service. The more serious offense is 26 U. Accordingly. although some effort has been made to tie the offense level to the level of taxes that were not deposited.C. nor even that taxes have not been paid.

obstruct. Klein. cert. Obstruct. 699 F. Specific offense characteristics from §2T1. – 324 – 2. (2) Commentary Statutory Provision: 18 U. 355 U. The base offense level is the offense level (base offense level plus any applicable specific offense characteristics) from §2T1.9(b) are to be applied to the base offense level determined under §2T1.. 247 F. 1984). Specific Offense Characteristics If more than one applies. 723 F. It does not apply to taxpayers. increase by 4 levels. or collection of revenue. 915 (2d Cir. obstructing and defeating .2d 908.2d 1017.4(b)(1) is applied.S. as appropriate. If the conduct was intended to encourage persons other than or in addition to co-conspirators to violate the internal revenue laws or impede.1 or §2T1. Otherwise. impairing. or defeat the ascertainment. Application Notes: 1. to violate the tax laws (e. impair. apply this adjustment if an adjustment from §2T1. denied. however. Do not. assessment. increase by 2 levels. 1983).2d 1544 (11th Cir. who merely evade taxes jointly or file a fraudulent return. 1021 (9th Cir. 2009 Conspiracy to Impede." United States v. impair. GUIDELINES MANUAL November 1. impairing. such as a husband and wife. or 10. 1038 (1984).9. the base offense level is 10. United States v. assessment. or defeat the ascertainment. obstruct. . § 371. Subsection (b)(2) provides an enhancement where the conduct was intended to encourage persons.S.9(a)(1) or (2). Carruth.S. cert.g. 464 U. other than the participants directly involved in the offense. or collection of revenue.4. computation. or defeating the Internal Revenue Service) if that offense level is greater than 10.9 §2T1. use the greater: (1) If the offense involved the planned or threatened use of violence to impede. the collection of revenue.1 or §2T1. 924 (1958). This section applies to conspiracies to "defraud the United States by impeding. Browning. . denied. 1957).§2T1. . See also United States v. obstructing.4 (whichever guideline most closely addresses the harm that would have resulted had the conspirators succeeded in impeding. Impair. computation. or an offense involving the marketing of fraudulent tax shelters or schemes). 3. 4. or Defeat Tax (a) Base Offense Level (Apply the greater): (1) (2) (b) Offense level determined from §2T1.C. an offense involving a "tax protest" group that encourages persons to violate the tax laws.

5762. the conduct is dealt with by dividing offenses into two broad categories: tax evasion offenses and regulatory offenses. §§ 5601-5605. Rather. 5691. 5671. – 325 – . 5671. 2009 GUIDELINES MANUAL §2T2.1 (Tax Table) corresponding to the tax loss. §§ 5601-5605. It also typically is complex and may be far-reaching. Commentary Statutory Provisions: 26 U. evasion or attempted evasion of taxes. making it quite difficult to evaluate the extent of the revenue loss caused. 1993 (see Appendix C. and 5762. where the essence of the conduct is tax evasion or a regulatory violation. Non-Payment of Taxes (a) Base Offense Level: Level from §2T4. The tax loss is the total amount of unpaid taxes that were due on the alcohol and/or tobacco. see Appendix A (Statutory Index). Historical Note: Effective November 1. 5661. Historical Note: Effective November 1. 1987. ALCOHOL AND TOBACCO TAXES Introductory Commentary This section deals with offenses contained in Parts I-IV of Subchapter J of Title 26. For purposes of this guideline.S. 5607. * * * * * 2. 1987. the "tax loss" is the amount of taxes that the taxpayer failed to pay or attempted not to pay. November 1. 5607. 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. 5661. §2T2. Because these offenses are no longer a major enforcement priority. Amended effective November 1. amendment 491). For additional statutory provision(s). 5691.S. or that the defendant was attempting to evade.November 1.C. amendments 233 and 234). provided the conduct constitutes non-payment.1 Background: This type of conspiracy generally involves substantial sums of money. no effort has been made to provide a section-by-section set of guidelines. Application Notes: 1. 1989 (see Appendix C.C. 5608.1. chiefly 26 U. 5608.

Importation of contraband or stolen goods not specifically covered by this Subpart would be a reason for referring to another. see Appendix A (Statutory Index). 1987. provided the conduct is tantamount to a record-keeping violation rather than an effort to evade payment of taxes. § 5601(a)(1). 5661. 548.g.C.2.C. It is intended to deal with some types of contraband. the importation of which is prohibited or restricted for non-economic reasons. November 1. firearms or pelts of endangered species. Other.S. – 326 – . Regulatory Offenses (a) Base Offense Level: 4 Commentary Statutory Provisions: 26 U. 1987.C. 1987. CUSTOMS TAXES Introductory Commentary This Subpart deals with violations of 18 U. 1436. theft or fraud) may warrant an upward departure. more specific guideline. 5671. 1465. amendment 685). * * * * * 3. Historical Note: Effective November 1.S. and 3907. more specific criminal statutes apply to most of these offenses.S. 1708(b). amendment 453). 1992 (see Appendix C. Amended effective November 1. Historical Note: Effective November 1. 5762. 550.§2T2. 551. §§ 5601. but is not intended to deal with the importation of other types of contraband. amendment 674). §2T2. GUIDELINES MANUAL November 1. November 1. Background: The most frequently prosecuted conduct violating this section is operating an illegal still. 541-545. §§ 496.1 2. §§ 283. 1464.C. 2009 Offense conduct directed at more than tax evasion (e. or other items such as obscene material. 2006 (see Appendix C.S. 1915 and 19 U.. such as drugs. and is designed to address violations involving revenue collection or trade regulation. 2004 (see Appendix C. 1586(e). For additional statutory provision(s). Historical Note: Effective November 1. Amended effective November 1. amendment 359). 547. 5603-5605. 1990 (see Appendix C. such as certain uncertified diamonds. Background: Prosecutions of this type are infrequent. 26 U. or for departing upward if there is not another more specific applicable guideline. if applicable.

§§ 496.—For purposes of subsection (b)(1). Application Notes: 1.1. 1465.S. (2) (3) For purposes of this guideline. or 5. 19 U. or restricted. 3907. an upward departure may be warranted. 548. 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. 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. In such instances. increase by 2 levels. If the resulting offense level is less than level 12. Commentary Statutory Provisions: 18 U. . apply that offense guideline if the resulting offense level is greater than that determined above. 547. 1586(e). 541-545. increase to level 12. limited. Sophisticated Means. Evading Import Duties or Restrictions (Smuggling). (b) Specific Offense Characteristic (1) If the offense involved sophisticated means. Receiving or Trafficking in Smuggled Property (a) Base Offense Level: (1) The level from §2T4. For additional statutory provision(s). or 4. §§ 283. 2009 GUIDELINES MANUAL §2T3. might be considered. if the tax loss exceeded $1. if the tax loss did not exceed $100. A sentence based upon an alternative measure of the "duty" evaded.November 1. 3. (c) Cross Reference (1) If the offense involves a contraband item covered by another offense guideline. such as the increase in market value due to importation. Especially when such items are harmful or protective quotas are in effect.000. 1708(b). 1436.C.1 §2T3.C. if the tax loss exceeded $100 but did not exceed $1. 550.1 (Tax Table) corresponding to the tax loss. "sophisticated means" means especially complex or especially intricate offense conduct pertaining to the execution or – 327 – 2. 1464. the duties evaded on such items may not adequately reflect the harm to society or protected industries resulting from their importation.S. Such conduct generally poses a lesser threat to revenue collection. 551. 1915.000. the "tax loss" is the amount of the duty. see Appendix A (Statutory Index). Particular attention should be given to those items for which entry is prohibited.

effective November 1. November 1. 653).000 More than $400. 1987.000 More than $100.000. corporate shells. amendment 617).000 More than $50. 1991 (see Appendix C. amendment 453). 1989 (see Appendix C. 1991 (see Appendix C. Amended effective November 1.000 More than $20.000 More than $2. November 1.000 More than $400. amendment 235). amendment 577).000. Tax Table Tax Loss (Apply the Greatest) (A) (B) (C) (D) (E) (F) (G) (H) (I) (J) (K) (L) (M) (N) (O) (P) $2. amendment 410). amendment 237). or both. Historical Note: Effective November 1. 2006 (see Appendix C. TAX TABLE §2T4.2.000.000. §2T3. Conduct such as hiding assets or transactions. amendment 617). Historical Note: Effective November 1. 1987. amendment 236) and November 1.000 More than $80. 1993 (see Appendix C. 2001 (see Appendix C. * * * * * 4.000 More than $200.500 More than $30.000 More than $5.000. through the use of fictitious entities. 2001 (see Appendix C.§2T3. 1989 (see Appendix C. 1987. amendment 647). amended effective November 1. Amended effective November 1. 2003 (see Appendix C. was deleted by consolidation with §2T3.000 More than $200.1 effective November 1. 1992 (see Appendix C. 1989 (see Appendix C. 1992 (see Appendix C.000 More than $1.1. amendment 410). November 1. amendment 685).000. amendment 453).500. or offshore financial accounts ordinarily indicates sophisticated means. amendment 491).000.000 Offense Level 6 8 10 12 14 16 18 20 22 24 26 28 30 32 34 36.2 (Receiving or Trafficking in Smuggled Property). [Deleted] Historical Note: Section 2T3.1 GUIDELINES MANUAL November 1.000 More than $12. November 1. 2009 concealment of an offense. – 328 – . 1998 (see Appendix C. November 1. January 25. November 1. November 1. 2003 (see Appendix C.000 or less More than $2. November 1.000 More than $7.

CONSPIRACIES. apply that guideline section.e. do not apply subdivision (A) above. decrease by 3 levels. (d) Special Instruction (1) Subsection (b) shall not apply to: – 329 – . If a conspiracy.1 PART X . Solicitation.1. 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.November 1. Specific Offense Characteristics (1) If an attempt. the offense level for solicitation is the same as that for the substantive offense.OTHER OFFENSES 1. 2009 GUIDELINES MANUAL §2X1. (A) If a 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. i. 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. 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. SOLICITATIONS §2X1. If the statute treats solicitation of the substantive offense identically with the substantive offense. or conspiracy is expressly covered by another offense guideline section. Attempt. decrease by 3 levels. plus any adjustments from such guideline for any intended offense conduct that can be established with reasonable certainty. solicitation. ATTEMPTS. (b) (2) (3) (B) (c) Cross Reference (1) When an attempt.

1 (A) GUIDELINES MANUAL November 1. 18 U. §§2C1.C. §2Q1.10.2. 372.6.3. § 930(c). 2D1.S. 2D1. 2C1. § 2332b(g)(5): 18 U.7. §2M6.9.S. 2A3.2. Application Notes: 1. § 2339A.S. 18 U.1. 2D1. 18 U. (a)(9).2. 49 U.C.2. 2A3.C.S. (a)(10). 2271. 18 U. 2D1.10.4.1.C. and 18 U.S. § 46505.2. 18 U.C. a federal crime of terrorism as defined in 18 U. and solicitations are expressly covered by other offense guidelines. § 2332a.C. 2D2. and 49 U. 2D1.5. § 32.S.13.8.2. 2A3. 2D2.1. 18 U. 2D3. 2D1. 2D1. 2A4.1.S. § 81. 49 U. §2N1.S.C. 2D1.C. §2E5. 2A5.1. §§ 371.1.S. see Appendix A (Statutory Index). conspiracies.7. 2D1.1.1.12.C. Commentary Statutory Provisions: 18 U. 2D1. §§2D1.§2X1.S. 2D1.C. 2D2. 2D3.1. 2D1.1.4.12. § 1363.1. § 2340A.C. Offense guidelines that expressly cover attempts include: §§2A2. 2D1. 2D1.5.S. For additional statutory provision(s). §§2D1.C.9. § 60123(b).2. 2D2. – 330 – . 2009 Any of the following offenses. 2D1. or was intended to promote. 2D1.2.S. 2D3.S.2. if such offense involved. Offense guidelines that expressly cover conspiracies include: §2A1. 2D1.13. 2D1. 2A3.11. § 1992(a)(1)-(a)(7).5.C. 2282A.1. 2D3.8. 2282B. Certain attempts.11. 2D1.1. 2D1. § 1362.C.6.S. § 46504. (B) Any of the following offenses: 18 U.

November 1.2. discharge of a weapon. In such cases. 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.1(b)(1). In certain cases.1. 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. Speculative specific offense characteristics will not be applied. 2. or the offense level for the theft of $30. – 331 – .000. with the enhancement for possession of a weapon. or obtaining a large sum of money.1 §2H1.000 minus 3 levels. or conspiring to commit. §2T1. (b)(2).1(a). the specific offense characteristic for physical restraint would be added. because such factors would be speculative. 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. the offense level is the offense level for the theft of $800. In the case of multiple counts that are not closely related counts. In an attempted theft. means the offense that the defendant was convicted of soliciting. For example. If the substantive offense is not covered by a specific guideline. if two defendants are arrested during the conspiratorial stage of planning an armed bank robbery. the offense level ordinarily would not include aggravating factors regarding possible injury to others. (b)(2). the value of the items that the defendant attempted to steal would be considered. Under §2X1. or (b)(3)(A) applies is determined separately for each count. no reduction of the offense level is warranted. Offense guidelines that expressly cover solicitations include: §2A1. of the intended offense. the arrest occurs well before the defendant or any co- 3. If it was established that the defendants actually intended to physically restrain the teller.1(b)(1). see §2X5. however. §§2C1. hostage taking. 4. where the intended offense was the theft of $800. 2C1. 2009 GUIDELINES MANUAL §2X1. 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). The offense level would simply reflect the level applicable to robbery of a financial institution. 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. For example.1 (Other Offenses). whichever is greater." as used in this guideline. attempting.000. §2M6. or (b)(3)(A)). Sometimes. but not all.9.000 but the participants completed (or were about to complete) only the acts necessary to steal $30. §2E5. Background: In most prosecutions for conspiracies or attempts. whether the 3-level reduction under §2X1. "Substantive offense.1. the base offense level will be the same as that for the substantive offense. In such cases.1.5.

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

amendment 655). or reasonably should have been known. § 2339 or § 2339A or who committed any offense involving or intending to promote a federal crime of terrorism.S. see Application Note 10 of the Commentary to §1B1. except as provided in subdivisions (2) and (3). Definition. the base offense level under this guideline shall be not more than level 30. amendment 380). except as provided in subdivision (B). 1072. § 2339 or § 2339A. 2002 (see Appendix C. "underlying offense" means the offense as to which the defendant is convicted of being an accessory.C. – 333 – .C. Apply the base offense level plus any applicable specific offense characteristics that were known.S. Historical Note: Effective November 1. 757.C.C.C.2 (Mitigating Role) normally would not apply because an adjustment for reduced culpability is incorporated in the base offense level.S.C.. amendment 496). (2) (3) (B) (C) Commentary Statutory Provisions: 18 U. § 2339A.S. 2009 GUIDELINES MANUAL §2X3. November 1.November 1. November 1. § 2339C(a)(1)(A)). or in the case of a violation of 18 U. as defined in 18 U. as provided in subdivision (A).C.—For purposes of this guideline. 2339C(c)(2)(A). § 2339B with respect to which the material support or resources were concealed or disguised. (A) The base offense level under this guideline shall be not more than level 30. 1991 (see Appendix C. 2339A. Application of Mitigating Role Adjustment. Application Notes: 1.1 (1) 6 levels lower than the offense level for the underlying offense. 1071. amendment 243). in connection with the concealment of or an escape from that offense). In any case in which the conduct is limited to harboring a fugitive. (c)(2)(B) (but only with respect to funds known or intended to have been provided or collected in violation of 18 U.S. amendment 700).S.S. the base offense level under this guideline shall be not more than level 20. 2003 (see Appendix C.3 (Relevant Conduct). "underlying offense" means the violation of 18 U. November 1. The limitation in subdivision (B) shall not apply in any case in which (i) the defendant is convicted under 18 U. 1987. November 1.S. amendment 637). §§ 3.e. 2007 (see Appendix C.—The adjustment from §3B1. 2284. "underlying offense" means the offense the defendant is convicted of having materially supported after its commission (i. In such a case. The base offense level under this guideline shall be not less than level 4. 1989 (see Appendix C. 2. § 2332b(g)(5). § 2339C(c)(2)(A). by the defendant. or in the case of a violation of 18 U. 1993 (see Appendix C.C. Amended effective November 1. 2339. or (ii) the conduct involved harboring a person who committed any offense listed in 18 U. other than a case described in subdivision (C). November 1.

§2X5. or more than 19.1. or reasonably should have been known. If the defendant is convicted under 18 U. 2009 * * * * * 4. Apply the base offense level plus any applicable specific offense characteristics that were known. § 1841(b).§2X4.S. ALL OTHER FELONY OFFENSES AND CLASS A MISDEMEANORS Historical Note: Effective November 1.S. by the defendant.C.1 GUIDELINES MANUAL November 1. "Underlying offense" means the offense as to which the defendant is convicted of committing the misprision. – 334 – .S. 2006 (see Appendix C. 1987. § 1841(a)(1) and listed in 18 U.S.C. Historical Note: Effective November 1.S. 1993 (see Appendix C. Amended effective November 1. § 3553 shall control. amendment 496). 1987. except that any guidelines and policy statements that can be applied meaningfully in the absence of a Chapter Two offense guideline shall remain applicable. The adjustment from §3B1. as that conduct is described in 18 U. November 1. apply the most analogous offense guideline.1. apply the guideline that covers the conduct the defendant is convicted of having engaged in. see Application Note 10 of the Commentary to §1B1. but in no event less than 4. 1989 (see Appendix C.C. § 4. Misprision of Felony (a) Base Offense Level: 9 levels lower than the offense level for the underlying offense. Amended effective November 1. Commentary Statutory Provision: 18 U. amendment 244).3 (Relevant Conduct). Other Felony Offenses If the offense is a felony for which no guideline expressly has been promulgated.C. If there is not a sufficiently analogous guideline. MISPRISION OF FELONY §2X4. amendment 685). Application Notes: 1. § 1841(a)(1). * * * * * 5. the provisions of 18 U. 2.C.2 (Mitigating Role) normally would not apply because an adjustment for reduced culpability is incorporated in the base offense level.

an upward departure may be warranted if the offense level under the applicable guideline does not adequately account for the death of. § 1841(a)(1). Attempt to Commit Criminal Sexual Abuse). if the defendant committed aggravated sexual abuse against the unborn child’s mother and it caused the death of the child in utero. especially assimilative crimes. Chapter Six.. Part J (Relief from Disability). Chapter Five. and.C. to apply the guideline that is most analogous. Chapter Five. (B) 3.3 (Conditions of Probation).C. or bodily injury to. Chapter Six.— (A) In General.November 1. the specific guidelines that have been promulgated cover the type of criminal behavior that most such offenses proscribe. For Class A misdemeanor offenses that have not been referenced in Appendix A. a child in utero at the time of the offense of conviction. Nonetheless.C. if so. § 1841(a)(1). 2. apply §2X5. §5G1.3 (Special Assessments). In a case in which there is no sufficiently analogous guideline. i. are not listed in the Statutory Index or in any of the lists of Statutory Provisions that follow each offense guideline. Upward Departure Provision.S.—For offenses under 18 U. §5D1.—Guidelines and policy statements that can be applied meaningfully in the absence of a Chapter Two offense guideline include: §5B1. §5E1. the Chapter Two offense guideline that applies is the guideline that covers the conduct the defendant is convicted of having engaged in.S. Background: Many offenses.1 (Imposition of a Term of Supervised Release). In General.C. Part B (Plea Agreements). § 1841(b) and that results in the death of. Part A (Sentencing Procedures). The sentencing guidelines apply to convictions under 18 U. the provisions of 18 U.S.2 (Class A Misdemeanors (Not Covered by Another Specific Offense Guideline)).S.3 (Imposition of a Sentence on a Defendant Subject to an Undischarged Term of Imprisonment). Part K (Departures). Part H (Specific Offender Characteristics). or serious bodily injury to.—This guideline applies only to felony offenses not referenced in Appendix A (Statutory Index).1 Commentary Statutory Provision: 18 U.2. the conduct of which the defendant is convicted that violates a specific provision listed in 18 U.1 (Criminal Sexual Abuse. § 3553 control. §5E1. Application of §2X5.S. 2009 GUIDELINES MANUAL §2X5.1 (Restitution).2 (Term of Supervised Release). the applicable Chapter Two guideline would be §2A3. Convictions under 18 U. Application Notes: 1. Part F (Sentencing Options). §5D1. Chapter Five. the child in utero. §5E1. §5D1. For example.4 (Forfeiture).S.—If the defendant is convicted under 18 U.C.S. § 1841(a)(1). § 1841(a)(1). Chapter Five. The court is required to determine if there is a sufficiently analogous offense guideline.3 (Conditions of Supervised Release). § 13 (Assimilative Crimes Act) – 335 – .e.C.C.

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

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

The offense involved use of the vessel as part of an ongoing criminal organization or enterprise. (B) Background: This guideline implements the directive to the Commission in section 103 of Public Law 110–407.S. an attempt to sink the vessel. 2009 Definition.—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. Historical Note: Effective November 1. – 338 – .§2X7. increase by 2 levels. Application Note: 1. Historical Note: Effective November 1. § 2285 to facilitate other felonies.—For purposes of this guideline. or the sinking of the vessel. (B) (C) Commentary Statutory Provision: 18 U. amendment 728). § 2285. Amended effective November 1. amendment 724). amendment 700).C. Upward Departure Provisions. 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.S. increase by 8 levels. 2009 (see Appendix C. 2007 (see Appendix C.C. 2008 (see Appendix C. §2X7.1 Application Note: 1. "underlying smuggling offense" means the smuggling offense the defendant committed through the use of the tunnel or subterranean passage.2. GUIDELINES MANUAL November 1.

Do not apply subsection (a) on the basis of gender in the case of a sexual offense.1(b)(1) applies. do not apply subsection (a) if an adjustment from §2H1. Amended effective November 1. "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. 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.ADJUSTMENTS PART A . Moreover. amendment 344). In such cases. Note that special evidentiary requirements govern the application of this subsection.1 CHAPTER THREE . 1990 (see Appendix C. national origin. (1) If the defendant knew or should have known that a victim of the offense was a vulnerable victim. increase by 3 levels. religion.November 1. Commentary Application Notes: 1. Historical Note: Effective November 1. ethnicity. this factor is taken into account by the offense level of the Chapter Two offense guideline. 1987. If (A) subdivision (1) applies.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. increase the offense level determined under subdivision (1) by 2 additional levels.3 – 339 – . 2009 GUIDELINES MANUAL §3A1. and (B) the offense involved a large number of vulnerable victims. disability. color. gender. 2. §3A1. (b) (2) (c) Special Instruction (1) Subsection (a) shall not apply if an adjustment from §2H1. Subsection (a) applies to offenses that are hate crimes. or sexual orientation of any person. For purposes of subsection (b). increase by 2 levels. Hate Crime Motivation or Vulnerable Victim (a) If the finder of fact at trial or.1. in the case of a plea of guilty or nolo contendere.

November 1. an upward departure may be warranted. Similarly. gender. ethnicity. or (C) a member of the immediate family of a – 340 – .e. in the case of a plea of guilty or nolo contendere. 1989 (see Appendix C. amendment 587).. 1997 (see Appendix C. the Commission has broadened the application of this enhancement to include offenses that. 1987. Official Victim (Apply the greatest): (a) If (1) the victim was (A) a government officer or employee. for example. amendment 521). and (B) who is unusually vulnerable due to age. Background: Subsection (a) reflects the directive to the Commission. a bank teller is not an unusually vulnerable victim solely by virtue of the teller’s position in a bank. 2000 (see Appendix C. 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. physical or mental condition. disability. November 1. or who is otherwise particularly susceptible to the criminal conduct. 1998 (see Appendix C. ethnicity. The adjustments from subsections (a) and (b) are to be applied cumulatively. The adjustment would apply. this subsection would not be applied unless the victim was unusually vulnerable for reasons unrelated to age. national origin. 2009 (Relevant Conduct). 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.§3A1.1 GUIDELINES MANUAL November 1. November 1. 4. Do not apply subsection (b) if the factor that makes the person a vulnerable victim is incorporated in the offense guideline. amendment 454). or sexual orientation.2. Amended effective November 1. Subsection (b)(2) implements. §3A1. 1990 (see Appendix C. for example. a primary motivation for the offense was the race. color. amendment 245). if the offense guideline provides an enhancement for the age of the victim. contained in Section 280003 of the Violent Crime Control and Law Enforcement Act of 1994. 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. religion. To avoid unwarranted sentencing disparity based on the method of conviction. 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. religion. 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. however. November 1. 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. For example. or sexual orientation of the victim). Do not. in a broader form. November 1. amendment 595). gender. disability. amendment 564). 1992 (see Appendix C. the court at sentencing determines are hate crimes. amendment 344). Historical Note: Effective November 1. national origin. 3. (B) a former government officer or employee. 1995 (see Appendix C. color. November 1. the instruction to the Commission in section 6(c)(3) of Public Law 105-184.

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

i.§3A1. 5. 2004 (see Appendix C. "Physically restrained" is defined in the Commentary to §1B1. "Prison official" means any individual (including a director. §3A1. For example. 1988 (see Appendix C. amendment 643). 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. November 1. November 1.1 (Application Instructions). "halfway house". such as the President or the Vice President of the United States. and (iii) a nurse who. increase by 2 levels. 1992 (see Appendix C. employee. 1987. but not including an inmate) authorized to act on behalf of a prison or correctional facility..e. 2. an upward departure may be warranted due to the potential disruption of the governmental function. November 1.2 GUIDELINES MANUAL November 1. this – 342 – . amendments 246-248). Historical Note: Effective November 1. Upward Departure Provision. or similar facility. Do not apply this adjustment where the offense guideline specifically incorporates this factor. 2009 control of a prison or other correctional facility. as well as actual serious bodily injury (or more serious injury) if it occurs. 2002 (see Appendix C. Restraint of Victim If a victim was physically restrained in the course of the offense.g. provides medical services to prisoners in a prison health facility. 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".. (ii) an individual employed by a prison as a work detail supervisor.—If the official victim is an exceptionally high-level official. community treatment center. While subsection (c) may apply in connection with a variety of offenses that are not by nature targeted against official victims.3. this enhancement would be applicable to any of the following: (i) an individual employed by a prison as a corrections officer. under contract. (ii) is physically away from the prison or correctional facility while on a pass or furlough. "Substantial risk of serious bodily injury" includes any more serious injury that was risked. independent contractor.—For purposes of subsection (c): "Custody or control" includes "non-secure custody". custody with no significant physical restraint. amendment 663). Amended effective January 15. For example. or (iii) is in custody at a community corrections center. 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. amendment 44). (B) Definitions. Commentary Application Notes: 1. or where the unlawful restraint of a victim is an element of the offense itself (e. amendment 455). November 1. or volunteer. 1989 (see Appendix C. officer.

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

Amended effective November 1. 2002 (see Appendix C. 1997 (see Appendix C. amendment 526). – 344 – . 1995 (see Appendix C. November 1.§3A1. Historical Note: Effective November 1. amendment 565). amendment 539).4 GUIDELINES MANUAL November 1. amendment 637). 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. November 1. 1996 (see Appendix C.

November 1. but need not have been convicted. amendment 345).. in the case of a defendant who did not organize. i.e. all conduct included under §1B1. amendment 456). increase by 2 levels. leader. §3B1. – 345 – . November 1. Amended effective November 1. Aggravating Role Based on the defendant’s role in the offense.1. 1990 (see Appendix C. lead. 2.g.1 PART B . 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.2 (or neither) may apply. an undercover law enforcement officer) is not a participant. 1987. however. When an offense is committed by more than one participant.. but who nevertheless exercised management responsibility over the property. Historical Note: Effective November 1. To qualify for an adjustment under this section.1 or §3B1. manager. Section 3B1. manager. or activities of a criminal organization. If the defendant was an organizer. 2009 GUIDELINES MANUAL §3B1.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. 1992 (see Appendix C.3 may apply to offenses committed by any number of participants. or supervisor in any criminal activity other than described in (a) or (b). An upward departure may be warranted. increase by 4 levels. 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. (b) (c) Commentary Application Notes: 1.3 (Relevant Conduct). the defendant must have been the organizer. A "participant" is a person who is criminally responsible for the commission of the offense. §3B1. assets. increase by 3 levels. and not solely on the basis of elements and acts cited in the count of conviction. 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.3(a)(1)-(4). leader. or supervisor of one or more other participants. or supervise another participant. A person who is not criminally responsible for the commission of the offense (e. manage.

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

(B) Conviction of Significantly Less Serious Offense. is not required to find. 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. For example.—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. Applicability of Adjustment. that such a role adjustment is warranted.— (A) Substantially Less Culpable than Average Participant.November 1. Definition. Fact-Based Determination. A defendant who is accountable under §1B1. or Trafficking (Including Possession with Intent to Commit These Offenses).—The determination whether to apply subsection (a) or subsection (b). 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. "participant" has the meaning given that term in Application Note 1 of §3B1.2 Commentary Application Notes: 1. 3.—For purposes of this guideline. Attempt or Conspiracy)) is convicted of simple possession of cocaine (an offense having a Chapter Two offense level of level 6 under §2D2. involves a determination that is heavily dependent upon the facts of the particular case.1 (Unlawful Manufacturing.1 (Unlawful Possession. 2009 GUIDELINES MANUAL §3B1.1 (Aggravating Role). or an intermediate adjustment. Importing. Accordingly.—This guideline is not applicable unless more than one participant was involved in the offense. 2. in weighing the totality of the circumstances. 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.3 only for the quantity of drugs the defendant personally transported or stored is not precluded from consideration for an adjustment under this guideline. As with any other factual issue. Attempt or Conspiracy)). See the Introductory Commentary to this Part (Role in the Offense). For example.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. Exporting. Requirement of Multiple Participants. based solely on the defendant’s bare assertion. 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. the court.—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. (C) – 347 – . whose role in that offense was limited to transporting or storing drugs and who is accountable under §1B1. a defendant who is convicted of a drug trafficking offense.

the court also shall apply the appropriate adjustment under this guideline. amendment 737). Under this provision. Definition of "Public or Private Trust". November 1. the position of public or private trust must have contributed in some significant way to facilitating the commission or concealment of the offense (e. For this adjustment to apply. Historical Note: Effective November 1. It is intended that the downward adjustment for a minimal participant will be used infrequently. 2001 (see Appendix C. or used a special skill.— Subsection (b) applies to a defendant described in Application Note 3(A) who is less culpable than most other participants. 2009 (see Appendix C. 1992 (see Appendix C. by making the detection of the offense or the defendant’s responsibility for the offense more difficult). Amended effective November 1. Commentary Application Notes: 1.1(a)(5). §3B1.—Subsection (a) applies to a defendant described in Application Note 3(A) who plays a minimal role in concerted activity. if this adjustment is based solely on the use of a special skill. 5. 2002 (see Appendix C. This adjustment may not be employed if an abuse of trust or skill is included in the base offense level or specific offense characteristic.1 (Aggravating Role). – 348 – .2 4.. increase by 2 levels. Persons holding such positions ordinarily are subject to significantly less supervision than employees whose responsibilities are primarily non-discretionary in nature.—In a case in which the court applied §2D1. a bank executive’s fraudulent loan scheme. but whose role could not be described as minimal. it may not be employed in addition to an adjustment under §3B1.1 (Aggravating Role). for example. 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. If this adjustment is based upon an abuse of a position of trust.§3B1. GUIDELINES MANUAL November 1. November 1. 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.e. This adjustment. Minor Participant. amendment 456). amendment 640). Abuse of Position of Trust or Use of Special Skill If the defendant abused a position of public or private trust.g. 2009 Minimal Participant. in a manner that significantly facilitated the commission or concealment of the offense.3.—"Public or private trust" refers to a position of public or private trust characterized by professional or managerial discretion (i. applies in the case of an embezzlement of a client’s funds by an attorney serving as a guardian. substantial discretionary judgment that is ordinarily given considerable deference). Application of Role Adjustment in Certain Drug Cases. it may be employed in addition to an adjustment under §3B1. November 1. 6. It is intended to cover defendants who are plainly among the least culpable of those involved in the conduct of a group.1 and the defendant’s base offense level under that guideline was reduced by operation of the maximum base offense level in §2D1. or the criminal sexual abuse of a patient by a physician under the guise of an examination. amendment 635). 1987..

November 1. 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.S. or any other provision of this guideline. an adjustment under this section for an abuse of a position of trust will apply. 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. or issue unlawfully. or (B) perpetrates a fraud by representing falsely to a patient or employer that the defendant is a licensed physician. Examples would include pilots. "Fiduciary of the benefit plan" is defined in 29 U. 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. 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.C. the defendant assumes a position of trust. training or licensing. § 1028(d)(7). 2009 GUIDELINES MANUAL §3B1. or use without authority. – 349 – 4. chemists. (B) . or has any authority or responsibility to do so. lawyers. Application of Adjustment in Certain Circumstances. incomplete. or misleading information. the defendant does not.3 2. "Means of identification" has the meaning given that term in 18 U. transfer. 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. in fact. § 501(a)). an adjustment under this section for abuse of a position of trust will apply. (B) 3. "Special skill" refers to a skill not possessed by members of the general public and usually requiring substantial education. accountants. In making the misrepresentation.C. 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. any means of identification. § 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. relative to the victim. A defendant who exceeds or abuses the authority of his or her position in order to obtain.S. and demolition experts. For example. 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.S.C. or who has any discretionary authority or responsibility in the administration of such plan. 5. doctors. (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. 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.—Notwithstanding Application Note 1. 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.

they do not. §3B1. amendment 580). 1987. effective November 1. amendment 303). "Used or attempted to use" includes directing.5. Do not apply this adjustment if the Chapter Two offense guideline incorporates this factor. recruiting. 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. the offense. 1996 (see Appendix C. amendment 527). 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. 1995 (see Appendix C. amendment 617).4 (untitled). encouraging. amendment 346). 2005 (see Appendix C. commanding. November 1. training. §3B1. 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. increase by 4 levels. and (apply the greater)— (A) (B) the offense involved the use of body armor.4. Historical Note: Effective November 1. was deleted effective November 1. Amended effective November 1. amendment 677). 1987. intimidating. 1990 (see Appendix C. November 1. Such persons generally are viewed as more culpable. 1993 (see Appendix C. amendment 726). or the defendant used body armor during the commission of the offense. 1995 (see Appendix C. amendment 527). or soliciting. amended effective November 1. November 1. 1989 (see Appendix C. in preparation for the offense. amendment 492). November 1. increase by 2 levels. or apprehension for. an upward departure may be warranted. Amended effective November 1.§3B1. Historical Note: Effective November 1. amendment 540). Commentary Application Notes: 1. 3. (2) – 350 – . A former §3B1. 2001 (see Appendix C. November 1. 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. in fact. If the defendant used or attempted to use more than one person less than eighteen years of age. 2.3 GUIDELINES MANUAL November 1. procuring. 1998 (see Appendix C. or in an attempt to avoid apprehension for the offense. 2009 (see Appendix C. increase by 2 levels. counseling.

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

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

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

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

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

. after appropriate sentencing notice. 1990 (see Appendix C.1 (Application Instructions)).C. as in any other case in which a Chapter Three adjustment applies (see §1B1. the sentence for the offense committed while on release plus the statutory sentencing enhancement under 18 U. Therefore. should divide the sentence on the judgment form between the sentence attributable to the underlying offense and the sentence attributable to the enhancement. when a defendant is sentenced for an offense committed while released in connection with another federal offense.C.e. amendment 684). § 3147 applies. a sentence of 30 months for the underlying offense plus 6 months under 18 U. increase the offense level by 3 levels. See Chapter Five. Historical Note: Effective November 1. 1991 (see Appendix C. Under 18 U.C. § 3147 applies.S. Similarly. 2006 (see Appendix C. Background: An enhancement under 18 U. including.§3C1. 2009 If death or bodily injury results or the conduct posed a substantial risk of death or bodily injury to more than one person. the adjustment provided by the enhancement in this section.3. GUIDELINES MANUAL November 1. Commentary Application Note: 1.2 6. § 3147 would satisfy this requirement.S.S. Part K (Departures). while at the same time complying with the statutory requirement. amendment 457). § 3147) is in accord with the guideline range for the offense committed while on release. an upward departure may be warranted. § 3147.C. 2009 (see Appendix C.S. § 3147 must run consecutively to any other sentence of imprisonment. Amended effective November 1. amendment 416). §3C1.S. if the applicable adjusted guideline range is 30-37 months and the court determines a "total punishment" of 30 months is appropriate. a sentence of imprisonment must be imposed in addition to the sentence for the underlying offense. For example.C.S. amendment 347). a sentence of 24 months for the underlying offense plus 6 months under 18 U. 1992 (see Appendix C. and the sentence of imprisonment imposed under 18 U. the court.C. in order to comply with the statute. – 356 – .S. Amended effective November 1. This guideline enables the court to determine and implement a combined "total punishment" consistent with the overall structure of the guidelines. November 1. Historical Note: Effective November 1. The court will have to ensure that the "total punishment" (i.C. § 3147 would satisfy this requirement. Commission of Offense While on Release If a statutory sentencing enhancement under 18 U. amendment 734). if the applicable adjusted guideline range is 30-37 months and the court determines a "total punishment" of 36 months is appropriate.

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

are oriented more toward single episodes of criminal behavior. In order to limit the significance of the formal charging decision and to prevent multiple punishment for substantially identical offense conduct. The single. such as those for theft. These rules apply to multiple counts of conviction (A) contained in the same indictment or information. "combined" offense level that results from applying these rules is used. 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. Accordingly. may be "composite" in that they involve a pattern of conduct or scheme involving multiple underlying offenses. The rules in this Part seek to provide incremental punishment for significant additional criminal conduct. The other counts determine how much to increase the offense level.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. In essence. Some offenses. Other offenses. D GUIDELINES MANUAL November 1.Ch. although legally distinct offenses. Other guidelines. so that it would be more appropriate to treat them as a single offense for purposes of sentencing. such as those for assault and robbery. after adjustment pursuant to the guidelines in subsequent parts. For example.g. such as an assault causing bodily injury to a teller during a bank robbery. 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 – . embezzling money from a bank and falsifying the related records. The amount of the additional punishment declines as the number of additional offenses increases. are so closely related to the more serious offense that it would be appropriate to treat them as part of the more serious offense. Some offense guidelines.. These rules have been designed primarily with the more commonly prosecuted federal offenses in mind. to determine the sentence. 3 Pt. counts that are grouped together are treated as constituting a single offense for purposes of the guidelines. this Part provides rules for grouping offenses together. e. or (B) contained in different indictments or informations for which sentences are to be imposed at the same time or in a consolidated proceeding. leaving the sentence enhancement to result from application of a specific offense characteristic. 2009 PART D . represent essentially the same type of wrongful conduct with the same ultimate harm. Essentially. 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. 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. fraud and drug offenses. racketeering and conspiracy. contain provisions that deal with repetitive or ongoing behavior. 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. different rules are required for dealing with multiple-count convictions involving these two different general classes of offenses. The most serious offense is used as a starting point.

amendment 121). § 1028A should be imposed. or (B) contained in different indictments or informations for which sentences are to be imposed at the same time or in a consolidated proceeding.5 the following: (1) Any count for which the statute (A) specifies a term of imprisonment to be imposed.November 1.3. 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. Sentences for such counts are governed by the provisions of §5G1. Procedure for Determining Offense Level on Multiple Counts (a) When a defendant has been convicted of more than one count. or otherwise contain provisions dealing with repetitive or ongoing misconduct (e. 2007 (see Appendix C.. § 1028A. 2009 GUIDELINES MANUAL §3D1. group them together for purposes of the multiple-count rules. Amended effective November 1. firearms dealing).—For purposes of sentencing multiple counts of conviction.2(a).C. amendment 707).S. (3) As to other offenses (e.2. In General.g. §3D1. 1989 (see Appendix C. November 1.. drug trafficking. add the numerical quantities and apply the pertinent offense guideline. counts can be (A) contained in the same indictment or information. Any count of conviction under 18 U. Determine the offense level applicable to each Group by applying the rules specified in §3D1. (2) When offenses are closely interrelated. (2) (3) (b) Exclude from the application of §§3D1.1 involved (e. fraud.S. independent instances of assault or robbery). See Application Note 2(B) of the Commentary to §5G1.g. Historical Note: Effective November 1.2-3D1. theft. 1987. including any specific offense characteristics for the conduct taken as a whole. (2) Commentary Application Notes: 1. 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. many environmental offenses). Determine the combined offense level applicable to all Groups taken together by applying the rules specified in §3D1..g. – 359 – .4. and (B) requires that such term of imprisonment be imposed to run consecutively to any other term of imprisonment.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.

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

§2Q2. For multiple counts of offenses that are not listed.1.4.5.3.2. 2T2. §§2L1. 2E5.1.13. the quantity of a substance involved. or other adjustment to. 2M3. §§2P1.6. §2K2.1.9. 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.1.2.11. §§2G2.5.3.5. 2B3. 2M2. §2R1.1. 2L2. 2B4.1. 2B5. 2P1. §§2L2. §§2G1. 2D1.5.1.1. 2T3. §§2S1. or if the offense behavior is ongoing or continuous in nature and the offense guideline is written to cover such behavior.1.1. 2B5.1. 2B3.4. §2X6. 2D2. §§2C1.1.3. 2P1.1. 2009 GUIDELINES MANUAL §3D1. §2C1. §§2E1.2. 2T1. the guideline applicable to another of the counts.1.3.2. (d) – 361 – . 2G2.9.4. 2T1.3. §§2D2.4.November 1. §§2H1. 2M3. 2D1.1. 2D2. 2E1.1. grouping under this subsection may or may not be appropriate. §§2T1. 2B6. 2M3. 2M3.1.1. §§2B1. 2B1.1. §2N3.3. §§2M2.5). Exclusion of an offense from grouping under this subsection does not necessarily preclude grouping under another subsection. When the offense level is determined largely on the basis of the total amount of harm or loss.1.1. 2B3.1.7.3. 2M3.2. §§2D1. 2B2.1.1. Offenses covered by the following guidelines are to be grouped under this subsection: §2A3. 2G3.1. Part A (except §2A3. or some other measure of aggregate harm. §§2B2.2.1. 2D1. 2L2. 2M3.8. §§2E4.1.2 (c) When one of the counts embodies conduct that is treated as a specific offense characteristic in. 2T1. 2T1. 2D1.1.5. 2C1.1. 2H4.5. 2S1.2.1. 2B1.3. Specifically excluded from the operation of this subsection are: all offenses in Chapter Two. 2E2.3. 2C1.2.1. 2H2.1.

The term "victim" is not intended to include indirect or secondary victims. i. (2) The defendant is convicted of kidnapping and assaulting the victim during the course of the kidnapping. Counts for which the statute (A) specifies a term of imprisonment to be imposed. the counts are grouped together when the societal interests that are harmed are closely related. comment. Where one count. . id. In contrast. 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. the counts are not grouped together because different societal interests are harmed. In such cases.. 4. Counts are to be grouped together into a single Group if any one or more of the subsections provide for such grouping. Generally.e. all counts arising out of a single incident. When one count charges an attempt to commit an offense and the other charges the commission of that offense. 3.2 GUIDELINES MANUAL November 1. Ambiguities should be resolved in accordance with the purpose of this section as stated in the lead paragraph. For offenses in which there are no identifiable victims (e. (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 are to be grouped together. The counts are to be grouped together. the "victim" for purposes of subsections (a) and (b) is the societal interest that is harmed. the counts are grouped together because the societal interests harmed (the interests protected by laws governing immigration) are closely related. See §3D1." Under subsection (a). 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. 2009 Commentary Application Notes: 1. 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. to identify and group "counts involving substantially the same harm. Examples: (1) The defendant is convicted of forging and uttering the same check.1(b)(1). But: (6) The defendant is convicted of two counts of assault on a federal officer for shooting at the officer on two separate days. for example. the counts will be grouped together under subsection (a). The counts are not to be grouped together. The three counts are to be grouped together. The counts are to be grouped together. (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... Subsections (a)-(d) set forth circumstances in which counts are to be grouped together into a single Group. drug or immigration offenses. where one count involves the sale of controlled substances and the other involves an immigration law violation. (n.1).g. where society at large is the victim). (5) The defendant is convicted of three counts of unlawfully bringing aliens into the United States. The counts are to be grouped together. there will be one person who is directly and most seriously affected by the offense and is therefore identifiable as the victim. 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.§3D1. involves unlawfully entering the United States and the other involves possession of fraudulent evidence of citizenship.

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

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

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

When the counts involve offenses of the same general type to which different guidelines apply. If the counts in the Group are covered by different guidelines.2(a)-(c). 2004 (see Appendix C. amendments 121.2(a)-(c). 2009 interpreting this Part and resolving ambiguities. Determine whether the specific offense characteristics or adjustments from Chapter Three. 2005 (see Appendix C. January 25. amendments 615. amendment 656). November 1. Commentary (b) Application Notes: 1. and C of Chapter Three. Parts A. 1989 (see Appendix C. and C apply based upon the combined offense behavior taken as a whole. November 1. amendment 664). November 1. amendment 648). November 1.2(d). amendment 638). 2003 (see Appendix C. i. November 1. Ordinarily. 1993 (see Appendix C. Sometimes. amendment 534). and 634). use the guideline that produces the highest offense level. The formal determination of the offense level for such a count may be unnecessary. as with a count for an attempt or conspiracy to commit the completed offense. November 1. 1998 (see Appendix C. the offense guideline applicable to the aggregate behavior is used. November 1. November 1. 2002 (see Appendix C. B. The "offense level" for a count refers to the offense level from Chapter Two after all adjustments from Parts A. 617. B and C of Chapter Three. 2001 (see Appendix C. In the case of counts grouped together pursuant to §3D1. 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. amendment 496). §3D1. November 1.3. the offense level applicable to a Group is the offense level. the highest offense level of the counts in the group is used. and 303). Note that guidelines for similar property offenses have been coordinated to produce identical offense levels. 1996 (see Appendix C. 2007 (see Appendix C. November 1. November 1. November 1. amendment 538)..§3D1. 2003 (see Appendix C. 3. determined in accordance with Chapter Two and Parts A.e.2(d). 1988 (see Appendix C. amendment 458). the court should look to the underlying policy of this Part as stated in the Introductory Commentary. determined in accordance with Chapter Two and Parts A. amendments 679 and 680). for the most serious of the counts comprising the Group. When counts are grouped pursuant to §3D1. 253-256. 1992 (see Appendix C. B. the highest offense level of the counts in the Group. . Historical Note: Effective November 1. 1991 (see Appendix C.2 GUIDELINES MANUAL November 1. November 1. November 1. 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. when small sums are involved the differing specific offense – 366 – 2. the offense level applicable to a Group is the offense level corresponding to the aggregated quantity. However. 1990 (see Appendix C. at least when substantial property losses are involved. When counts are grouped pursuant to §3D1. amendment 45). B. amendments 309. 1995 (see Appendix C. and 349). 348. and C of Chapter Three. amendment 579). amendment 417). apply the offense guideline that produces the highest offense level. 1987. it will be clear that one count in the Group cannot have a higher offense level than another. Amended effective June 15. amendment 701).

which is fairly wide.4 characteristics that require increasing the offense level to a certain minimum may affect the outcome. amendment 617).5 More than 5 Increase in Offense Level none add 1 level add 2 levels add 3 levels add 4 levels add 5 levels. including injury. The robbery. 2004 (see Appendix C. Historical Note: Effective November 1. This is because the offense guideline for rape (§2A3. 1987.1) includes the most common aggravating factors. if the defendant commits forcible criminal sexual abuse (rape). 4. all against the same victim on a single occasion.4. aggravated assault. amendments 257 and 303). all of the counts are grouped together under §3D1. For example.2. However. Count one additional Unit for each Group that is equally serious or from 1 to 4 levels less serious. Sometimes the rule specified in this section may not result in incremental punishment for additional criminal acts because of the grouping rules. November 1. an exceptionally large property loss in the course of the rape would provide grounds for an upward departure. Disregard any Group that is 9 or more levels less serious than the Group with the highest offense level. Such Groups will not increase the applicable offense level – 367 – (b) (c) . See §5K2.5 (Property Damage or Loss). In determining the number of Units for purposes of this section: (a) Count as one Unit the Group with the highest offense level.November 1. will not. 2009 GUIDELINES MANUAL §3D1. Summary examples of the application of these rules are provided at the end of the Commentary to this Part. The aggravated assault will increase the guideline range for the rape. The additional factor of property loss ordinarily can be taken into account adequately within the guideline range for rape. Amended effective November 1. 1989 (see Appendix C. and robbery.3 3 1/2 . that data showed to be significant in actual practice. §3D1. 2001 (see Appendix C. Count as one-half Unit any Group that is 5 to 8 levels less serious than the Group with the highest offense level. 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 . however. November 1. Background: This section provides rules for determining the offense level associated with each Group of Closely Related Counts. amendment 674).

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. the approach adopted in this section could produce adjustments for the additional counts that are inadequate or excessive. there will be no increase in the offense level resulting from the additional counts. determine the number of Units that the remaining Groups represent. Next.§3D1. Amended effective November 1. the court will have latitude to impose added punishment by sentencing toward the upper end of the range authorized for the most serious offense. possibly even more than those offenses would carry if prosecuted separately.3 may produce a single Group of Closely Related Counts. In such cases. 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. Inasmuch as the maximum increase provided in the guideline is 5 levels. departure would be warranted in the unusual case where the additional offenses resulted in a total of significantly more than 5 Units. identify the offense level applicable to the most serious Group. Ordinarily. An alternative method for ensuring more precise adjustments would have been to determine the appropriate offense level adjustment through a more complicated mathematical formula. 2009 but may provide a reason for sentencing at the higher end of the sentencing range for the applicable offense level. amendment 350). Again. each Group will represent one Unit. 1987. If there are several groups and the most serious offense is considerably more serious than all of the others. such situations should be infrequent and can be handled through departure. Finally. it is possible that if there are several minor offenses that are not grouped together. Historical Note: Effective November 1. The procedure for calculating the combined offense level when there is more than one Group of Closely Related Counts is as follows: First. Application of the rules in §§3D1.2 and 3D1.4 GUIDELINES MANUAL November 1. that approach was not adopted because of its complexity. – 368 – . the combined offense level is the level corresponding to the Group determined in accordance with §3D1. Groups 9 or more levels less serious than the most serious Group should not be counted for purposes of the table. Conversely.3. Background: When Groups are of roughly comparable seriousness. To avoid this anomalous result and produce declining marginal punishment. 2. 1990 (see Appendix C. assign it one Unit. however. and that Groups 5 to 8 levels less serious should be treated as equal to one-half of a Group. Thus. 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. application of the rules in this Part could result in an excessive increase in the sentence range. Commentary Application Notes: 1. When the most serious Group carries an offense level substantially higher than that applicable to the other Groups. counting the lesser Groups fully for purposes of the table could add excessive punishment. In unusual circumstances. if the most serious Group is at offense level 15 and if two other Groups are at level 10.

The first count translates into 46 kilograms of marihuana. Importing. Altogether there are 2 1/2 Units. The examples are discussed summarily. step-by-step approach is recommended until the user is thoroughly familiar with the guidelines. this offense level is increased by 2 levels to 28 under §3C1. In the fourth robbery $12.November 1. Because the conduct constituting the bribery offense is accounted for by §3C1.1 (Obstructing or Impeding the Administration of Justice). because the offense level for bribery (22) is less than the offense level for the drug offenses (28). In addition. drawn from presentence reports in the Commission’s files. Part E (Acceptance of Responsibility) and Chapter Four. Defendant C was convicted on four counts: (1) distribution of 230 grams of cocaine. the second count translates into 30 kilograms of marihuana. – 369 – 2. a more thorough.4. 1987. The total is 151 kilograms of marihuana. and the third count translates into 75 kilograms of marihuana. 2009 GUIDELINES MANUAL §3D1. 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. each of the first three represents one-half unit for purposes of §3D1. (3) distribution of 75 grams of heroin.2. the offense level was therefore 28. and the offense level for the most serious (28) is therefore increased by 3 levels under the table. Each would represent a distinct Group. the offense level was 22 (20 plus a 2-level increase because a financial institution was robbed) (§2B3. because of the attempted bribe of the DEA agent. each charging robbery of a different bank. As the first three counts are 6 levels lower than the fourth. Historical Note: Effective November 1.1 (Unlawful Manufacturing. Exporting.2(c). it becomes part of the same Group as the drug offenses pursuant to §3D1. * * * * * Illustrations of the Operation of the Multiple-Count Rules The following examples.1(b)). The combined offense level is 28 pursuant to §3D1. Part B (Career Offenders and Criminal Livelihood). or Trafficking)).3(a). Determining the Total Punishment Use the combined offense level to determine the appropriate sentence in accordance with the provisions of Chapter Five.000 to avoid prosecution.5. Under §2D1. (4) offering a DEA agent $20.1. illustrate the operation of the guidelines for multiple counts. the combined offense level for the drug offenses is 26.000 was taken and a firearm was displayed.1. The combined offense level for drug offenses is determined by the total quantity of drugs. The combined offense level is subject to adjustments from Chapter Three. §3D1. (2) distribution of 150 grams of cocaine. converted to marihuana equivalents (using the Drug Equivalency Tables in the Commentary to §2D1.5 §3D1. 1. Defendant A was convicted on four counts. In each of the first three robberies. The combined offense level is 31. .

§3D1.5 3. 2009 Defendant D was convicted of four counts arising out of a scheme pursuant to which the defendant received kickbacks from subcontractors. 1991 (see Appendix C. Amended effective November 1. Since these two guidelines produce identical offense levels. 1995 (see Appendix C.000 from subcontractor A relating to contract X (Mail Fraud). GUIDELINES MANUAL November 1. and Fraud). – 370 – . amendment 534). which results in an offense level of 16 under either §2B1. amendment 737). amendment 350). November 1.000. 1989 (see Appendix C. Historical Note: Effective November 1.1 (Theft. November 1.1 (assuming the application of the "sophisticated means" enhancement in §2B1. 1990 (see Appendix C.1. which treats the offense as a sophisticated fraud. amendment 617). November 1. The mail fraud counts are covered by §2B1.1(b)(9)) or §2B4. (4) The defendant received $20. (2) The defendant received $12.1 (Bribery in Procurement of Bank Loan and Other Commercial Bribery). 1987. The total money involved is $74. (3) The defendant received $15. amendment 417).000 from subcontractor A relating to contract X (Commercial Bribery). 2001 (see Appendix C. the combined offense level is 16.000 from subcontractor B relating to contract Z (Commercial Bribery). November 1. The counts were as follows: (1) The defendant received $27. amendment 303).000 from subcontractor A relating to contract Y (Mail Fraud). The bribery counts are covered by §2B4. 2009 (see Appendix C. November 1. Property Destruction.

2009 GUIDELINES MANUAL §3E1.ACCEPTANCE OF RESPONSIBILITY §3E1. or affirmatively admit. voluntary surrender to authorities promptly after commission of the offense. (b) (c) (d) (e) (f) – 371 – . and truthfully admitting or not falsely denying any additional relevant conduct for which the defendant is accountable under §1B1. relevant conduct beyond the offense of conviction in order to obtain a reduction under subsection (a). However. 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. the following: (a) truthfully admitting the conduct comprising the offense(s) of conviction. (b) Commentary Application Notes: 1.November 1. voluntary payment of restitution prior to adjudication of guilt. appropriate considerations include. In determining whether a defendant qualifies under subsection (a).1 PART E . 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. decrease the offense level by 1 additional level. the offense level determined prior to the operation of subsection (a) is level 16 or greater. but are not limited to.1. voluntary termination or withdrawal from criminal conduct or associations. If the defendant qualifies for a decrease under subsection (a). thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently. Acceptance of Responsibility (a) If the defendant clearly demonstrates acceptance of responsibility for his offense. 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. voluntary assistance to authorities in the recovery of the fruits and instrumentalities of the offense. decrease the offense level by 2 levels. a defendant who falsely denies. voluntary resignation from the office or position held during the commission of the offense.3 (Relevant Conduct).

the conduct qualifying for a decrease in offense level under subsection (b) will occur particularly early in the case. 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). a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct. The sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility.1 may apply. and the timeliness of the defendant’s conduct in manifesting the acceptance of responsibility. See section 401(g)(2)(B) of Public Law 108–21.g. In each such instance. where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e. Subsection (a) provides a 2-level decrease in offense level.g. There may. . Because the Government is in the best position to determine whether the defendant has assisted authorities in a manner that avoids preparing for trial. 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. For this reason. will constitute significant evidence of acceptance of responsibility for the purposes of subsection (a). GUIDELINES MANUAL November 1. However.3 (Relevant Conduct) (see Application Note 1(a)). Entry of a plea of guilty prior to the commencement of trial combined with truthfully admitting the conduct comprising the offense of conviction. for example. however. counseling or drug treatment). In general. 6. the determination of the sentencing judge is entitled to great deference on review. A defendant who enters a guilty plea is not entitled to an adjustment under this section as a matter of right. 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. is convicted. be extraordinary cases in which adjustments under both §§3C1. an adjustment under subsection (b) may only be granted upon a formal motion by the Government at the time of sentencing.1 (g) (h) 2. however.1 (Obstructing or Impeding the Administration of Justice) ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct.. and is context specific. and truthfully admitting or not falsely denying any additional relevant conduct for which he is accountable under §1B1. Conduct resulting in an enhancement under §3C1. and only then admits guilt and expresses remorse. – 372 – 3. For example.. does not automatically preclude a defendant from consideration for such a reduction. Conviction by trial. The timeliness of the defendant’s acceptance of responsibility is a consideration under both subsections. to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct). however.1 and 3E1. 4. to qualify under subsection (b). 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. 5. 2009 post-offense rehabilitative efforts (e. This may occur.§3E1. this evidence may be outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility.

At offense level 15 or lower. 2003. 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. however.November 1. 1990 (see Appendix C. amendment 649). amendment 351). effective April 30. amendment 258). 2003 (see Appendix C. thereby appropriately meriting an additional reduction. to a defendant whose offense level is level 15 or lower prior to application of subsection (a). Historical Note: Effective November 1. and the Background Commentary. Application Note 6 (including adding the last paragraph of that application note). Amended effective January 15. 1987. amendment 459). 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). a defendant who clearly demonstrates acceptance of responsibility for his offense by taking. – 373 – . 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. 2009 GUIDELINES MANUAL §3E1. Section 401(g) of Public Law 108–21 directly amended subsection (b). November 1. 1989 (see Appendix C. 1988 (see Appendix C. Subsection (a) provides a 2-level decrease in offense level. April 30. Such a defendant has accepted responsibility in a way that ensures the certainty of his just punishment in a timely manner. 1992 (see Appendix C. amendment 46). For several reasons.1 Background: The reduction of offense level provided by this section recognizes legitimate societal interests. November 1. in a timely fashion. Subsection (b) does not apply.

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

1 determine the criminal history category (I-VI) in the Sentencing Table in Chapter Five.2(a).1(b). §4A1. parole. parole. see §4A1. Therefore.2(b). (b).2 must be read together.1 and 4A1.1(a). A sentence for a foreign conviction.2(e). §§4A1. add only 1 point for this item. Application Notes: 1. see §4A1.2(k). See §4A1.1(a). Where a prior sentence of imprisonment resulted from a revocation of probation. or (c) above because such sentence was counted as a single sentence. §4A1. or an invalid conviction is not counted. 2. 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.2.2(a). The term "sentence of imprisonment" is defined at §4A1.2(b). (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 govern the computation of the criminal history points. The definitions and instructions in §4A1. The term "prior sentence" is defined at §4A1. 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. a conviction that has been expunged. The following notes highlight the interaction of §§4A1. Three points are added for each prior sentence of imprisonment exceeding one year and one month. Part A.1 and 4A1. 2009 GUIDELINES MANUAL §4A1. The term "sentence of imprisonment" is defined at §4A1. There is no limit to the number of points that may be counted under this item. See §4A1.1 in imprisonment or escape status on such a sentence. Where a prior sentence of imprisonment resulted from a revocation of probation.2. Two points are added for each prior sentence of imprisonment of at least sixty days not counted in §4A1. If 2 points are added for item (d).2(h) and (j) and the Commentary to §4A1. – 375 – . There is no limit to the number of points that may be counted under this item. or a similar form of release. or a similar form of release. See §4A1. 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(k).November 1.2(d). The term "prior sentence" is defined at §4A1. Commentary The total criminal history points from §4A1. See §4A1. up to a total of 3 points for this item.2(e).

. or an invalid conviction. (j). See §4A1.1(d). 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. The term "prior sentence" is defined at §4A1.2(a).2(e).2.2(c)(2). Sentences for certain specified non-felony offenses are never counted. §4A1.2 (Definitions and Instructions for Computing Criminal History) having a custodial or supervisory component. parole. work release. an expunged conviction. See §4A1. any relevant conduct) while under any criminal justice sentence. See §4A1. See §4A1. See §4A1. (i). 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. or an invalid conviction is not counted.2. For the purposes of this item. A diversionary disposition is counted only where there is a finding or admission of guilt in a judicial proceeding. Sentences for certain specified non-felony offenses are counted only if they meet certain requirements. Failure to report for service of a sentence of imprisonment is to be treated as an escape from such sentence. is not counted.2(g).2(h). §4A1. Sentences for certain specified non-felony offenses are never counted. although active supervision is not required for this item – 376 – .2(f).2(c)(2). A military sentence is counted only if imposed by a general or special court martial. A sentence for a foreign conviction or a tribal court conviction. a tribal court conviction.e. supervised release. a "criminal justice sentence" means a sentence countable under §4A1. (i). See §4A1. Two points are added if the defendant committed any part of the instant offense (i. See §4A1. including probation.2(d). 3.2(n).1(a) or (b). imprisonment. See §4A1. and the Commentary to §4A1. or escape status. 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. and the Commentary to §4A1.1(c). an expunged conviction.§4A1. See §4A1.2(d). A maximum of four points may be counted under this item. See §4A1. See §4A1. A sentence for a foreign conviction.2(h).1 GUIDELINES MANUAL November 1.2(c)(1). One point is added for each prior sentence not counted under §4A1. (j). A military sentence is counted only if imposed by a general or special court martial.2(g). See §4A1. 4.

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

and residency in a halfway house. 1989 (see Appendix C. such conviction shall be counted as if it constituted a prior sentence under §4A1. and (c) of §4A1. but not yet sentenced. In the case of a conviction for an offense – 378 – (2) (4) . Where a defendant has been convicted of an offense. use the aggregate sentence of imprisonment. Because of the potential overlap of (d) and (e). If consecutive sentences were imposed. 2007 (see Appendix C. amendments 259-261).e. However.1 distinguish confinement sentences longer than one year and one month.1 GUIDELINES MANUAL November 1. the defendant is arrested for the first offense prior to committing the second offense). Section 4A1. amendment 709). or (B) the sentences were imposed on the same day. If the defendant has multiple prior sentences.1(a). Historical Note: Effective November 1.1(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. 1987. (b). amendments 381 and 382). November 1. whether by guilty plea. trial.1(c) if a sentence resulting from that conviction otherwise would be countable. and all other sentences. (b). or plea of nolo contendere. probation. fines. If there is no intervening arrest. 2009 Subdivisions (a). Section 4A1. amendment 651). Definitions and Instructions for Computing Criminal History (a) Prior Sentence (1) The term "prior sentence" means any sentence previously imposed upon adjudication of guilt. use the longest sentence of imprisonment if concurrent sentences were imposed.2. for conduct not part of the instant offense.§4A1.1(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. See also §4A1.. Prior sentences always are counted separately if the sentences were imposed for offenses that were separated by an intervening arrest (i.1(c). thus.1(a) or (b). For purposes of applying §4A1. prior sentences are counted separately unless (A) the sentences resulted from offenses contained in the same charging instrument. and (c). determine whether those sentences are counted separately or as a single sentence. their combined impact is limited to three points. shorter confinement sentences of at least sixty days. such as confinement sentences of less than sixty days. Count any prior sentence covered by (A) or (B) as a single sentence. a defendant who falls within both (d) and (e) is more likely to commit additional crimes.1(f). (d) and (e) are not completely combined. 2003 (see Appendix C. (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. November 1. 1991 (see Appendix C. §4A1. if prior sentences are counted as a single sentence. Amended effective November 1. October 27.

2 set forth in §4A1. or plea of nolo contendere. by whatever name they are known.November 1. by whatever name they are known. 2009 GUIDELINES MANUAL §4A1. 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. "Convicted of an offense. means that the guilt of the defendant has been established. (2) (c) Sentences Counted and Excluded Sentences for all felony offenses are counted. Sentences for misdemeanor and petty offenses are counted.2(c)(1). (b) Sentence of Imprisonment Defined (1) The term "sentence of imprisonment" means a sentence of incarceration and refers to the maximum sentence imposed." for the purposes of this provision. If part of a sentence of imprisonment was suspended. except as follows: (1) Sentences for the following prior offenses and offenses similar to them. 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 – . trial. "sentence of imprisonment" refers only to the portion that was not suspended. whether by guilty plea. 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. apply this provision only where the sentence for such offense would be countable regardless of type or length. (2) Sentences for the following prior offenses and offenses similar to them.

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

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

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

the stated maximum is five years.g. not the length of time actually served. in the case of an indeterminate sentence for a term not to exceed the defendant’s twenty-first birthday. if a defendant was convicted of a number of serious non-violent offenses committed on different occasions.S. Sentences Imposed in the Alternative. the length of a sentence of imprisonment is the stated maximum (e. an upward departure may be warranted. or (B) have been ruled constitutionally invalid in a prior case are not to be counted.2(c). 5. § 851 expressly provides that a defendant may collaterally attack certain prior convictions). Sentences for Driving While Intoxicated or Under the Influence. 4. in the case of an indeterminate sentence for a term not to exceed five years. With respect to the current sentencing proceeding.2(a)(3) and (b)(2). Upward Departure Provision. 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. the defendant must have actually served a period of imprisonment on such sentence (or. 3. 6. 21 U.2(b)(1) and (2). or Invalidated Convictions. 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).November 1.. In such a case. See §4A1. or (c). Such offenses are not minor traffic infractions within the meaning of §4A1. 2. if the defendant escaped.C. in the case of a determinate sentence of five years.—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.—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. A sentence of probation is to be treated as a sentence under §4A1. Vacated.. 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. the stated maximum is five years. For example. the stated maximum is five years.2 offense is similar to the instant offense (because sentences for other offenses set forth in §4A1. would have served time). Reversed.1(c) unless a condition of probation requiring imprisonment of at least sixty days was imposed.2(c)(1) are counted only if they are of a specified type and length).—Convictions for driving while intoxicated or under the influence (and similar offenses by whatever name they are known) are counted. – 383 – .—To qualify as a sentence of imprisonment. $1.g. (b).3 (Adequacy of Criminal History Category).. See §4A1. criminal history points are based on the sentence pronounced. Sentence of Imprisonment. Nonetheless. For the purposes of applying §4A1. the criminal conduct underlying any conviction that is not counted in the criminal history score may be considered pursuant to §4A1. 2009 GUIDELINES MANUAL §4A1. in the case of an indeterminate sentence of one to five years.—A sentence which specifies a fine or other nonincarcerative disposition as an alternative to a term of imprisonment (e. That is.1(a). 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.000 fine or ninety days’ imprisonment) is treated as a non-imprisonment sentence.g.

if any. the term "commencement of the instant offense" includes any relevant conduct.g.3 (Relevant Conduct). 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. even if probation or conditional release was subsequently revoked. Rather than count the original sentence and the resentence after revocation as separate sentences. Revocations to be Considered.2 7.2(f) requires counting prior adult diversionary dispositions if they involved a judicial determination of guilt or an admission of guilt in open court.—Section 4A1. expunged convictions are not counted. or serious dissimilar. §4A1. the revocation term of imprisonment (45 days) would be – 384 – 8. Applicable Time Period. Attempting to count every juvenile adjudication would have the potential for creating large disparities due to the differential availability of records. only those that resulted in adult sentences of imprisonment exceeding one year and one month. and the total should be counted as if it were one sentence. Convictions Set Aside or Defendant Pardoned. e. To avoid disparities from jurisdiction to jurisdiction in the age at which a defendant is considered a "juvenile. the maximum three points would be assigned. .2(d) covers offenses committed prior to age eighteen. 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. and the defendant was sentenced to a total of 45 days of imprisonment. Sentences resulting from such convictions are to be counted. 11. that conviction would be computed separately from the sentence imposed for the revocation." this provision applies to all offenses committed prior to age eighteen. did not exceed one year and one month. in order to restore civil rights or to remove the stigma associated with a criminal conviction. for offenses committed prior to age eighteen. However. Example: A defendant was serving two probationary sentences.2(a)(2). See §1B1. and such sentences are counted separately under §4A1. 9.2(a)(2).—Section 4A1. the court may consider this information in determining whether an upward departure is warranted under §4A1. By this approach. at the time of revocation another sentence was imposed for a new criminal conviction. 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.2(j).. probation was revoked on both sentences as a result of the same violation conduct. If the sentence originally imposed. criminal conduct. if any.2(k) covers revocations of probation and other conditional sentences where the original term of imprisonment imposed. the sentence imposed upon revocation. If.3 (Adequacy of Criminal History Category). As used in §4A1.—Section 4A1. 10. however.—Section 4A1. add the term of imprisonment imposed upon revocation to the sentence that will result in the greatest increase in criminal history points. or the total of both sentences exceeded one year and one month.2(d)(2) and (e). 2009 Offenses Committed Prior to Age Eighteen. Where a revocation applies to multiple sentences. 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. the sentence given upon revocation should be added to the original sentence of imprisonment. 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.2(d)(2) and (e) establishes the time period within which prior sentences are counted. each counted separately under §4A1.§4A1. Diversionary Dispositions. GUIDELINES MANUAL November 1.

g.g. Historical Note: Effective November 1. 2009 GUIDELINES MANUAL §4A1. Departures Based on Inadequacy of Criminal History Category (Policy Statement) (a) UPWARD DEPARTURES. November 1. 1989 (see Appendix C. (iv) the level of culpability involved. 1993 (see Appendix C. sentences for such offenses are to be treated as if the defendant had been convicted under state law. (iii) the elements of the offense. and (v) the degree to which the commission of the offense indicates a likelihood of recurring criminal conduct.—The information described in subsection (a) may include information concerning the following: (2) – 385 – .November 1.1(b) (for the combined 60-day term of imprisonment) and 1 criminal history point under §4A1.— A number of local jurisdictions have enacted ordinances covering certain offenses (e. larceny and assault misdemeanors) that are also violations of state criminal law. 1991 (see Appendix C.2(c)(1). November 1.—"Insufficient funds check. 2007 (see Appendix C. Local Ordinance Violations. are to be counted in the criminal history score. This enables a local court (e.— (A) In General. a municipal court) to exercise jurisdiction over such offenses. 1992 (see Appendix C." as used in §4A1. not otherwise excluded. Amended effective November 1.2(c)(2) and..—In determining whether an unlisted offense is similar to an offense listed in subdivision (c)(1) or (c)(2).—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. Application of Subsection (c). 12. (B) (C) Background: Prior sentences.1(c) (for the other probationary sentence). does not include any conviction establishing that the defendant used a false name or non-existent account. therefore. amendments 352 and 353).3 added to the probationary sentence that had the 15-day term of imprisonment. 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. including uncounseled misdemeanor sentences where imprisonment was not imposed.. November 1. (ii) the perceived seriousness of the offense as indicated by the level of punishment. 1990 (see Appendix C. November 1. Such offenses are excluded from the definition of local ordinance violations in §4A1. amendment 493). Insufficient Funds Check. amendment 709). amendments 262-265). §4A1.3.— (1) STANDARD FOR UPWARD DEPARTURE. an upward departure may be warranted. amendments 381 and 382). This would result in a total of 2 criminal history points under §4A1. 1987. November 1. TYPES OF INFORMATION FORMING THE BASIS FOR UPWARD DEPARTURE. amendment 472).

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

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

(iii) (iv) (B) Upward Departures from Criminal History Category VI.g.—In the case of an egregious. a departure above the guideline range for a defendant with Criminal History Category VI may be warranted. Downward Departures.3 2. a defendant with five prior sentences for very large-scale fraud offenses may have 15 criminal history points. 3. Background: This policy statement recognizes that the criminal history score is unlikely to take into account all