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Federal Guidelines

Federal Guidelines

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  • 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
  • 4.KIDNAPPING, ABDUCTION, OR UNLAWFUL RESTRAINT
  • 5.AIR PIRACY AND OFFENSES AGAINST MASS TRANSPORTATION SYSTEMS
  • 6.THREATENING OR HARASSING COMMUNICATIONS, HOAXES, STALKING,
  • PART B - BASIC ECONOMIC OFFENSES
  • 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 D - OFFENSES INVOLVING DRUGS AND NARCO-TERRORISM
  • 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
  • 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
  • §2H1.1.Offenses Involving Individual Rights
  • 2.POLITICAL RIGHTS
  • 3.PRIVACY AND EAVESDROPPING
  • 4.PEONAGE, INVOLUNTARY SERVITUDE, SLAVE TRADE, AND CHILD SOLDIERS
  • 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,
  • 1.IMMIGRATION
  • 2.NATURALIZATION AND PASSPORTS
  • 1. TREASON
  • 2.SABOTAGE
  • 3.ESPIONAGE AND RELATED OFFENSES
  • 4. EVASION OF MILITARY SERVICE
  • 1.TAMPERING WITH CONSUMER PRODUCTS
  • 2.FOOD, DRUGS, AGRICULTURAL PRODUCTS, AND CONSUMER PRODUCTS
  • 3.ODOMETER LAWS AND REGULATIONS
  • §2N3.1.Odometer Laws and Regulations
  • 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
  • EXCISE TAXES (OTHER THAN ALCOHOL, TOBACCO, AND CUSTOMS TAXES)
  • 2.ALCOHOL AND TOBACCO TAXES
  • 3.CUSTOMS TAXES
  • 4.TAX TABLE
  • 1.CONSPIRACIES, ATTEMPTS, SOLICITATIONS
  • 2.AIDING AND ABETTING
  • 3.ACCESSORY AFTER THE FACT
  • §2X3.1.Accessory After the Fact
  • 4.MISPRISION OF FELONY
  • 5.ALL OTHER FELONY OFFENSES AND CLASS A MISDEMEANORS
  • 6.OFFENSES INVOLVING USE OF A MINOR IN A CRIME OF VIOLENCE
  • 7.OFFENSES INVOLVING BORDER TUNNELS AND SUBMERSIBLE AND
  • CHAPTER THREE - ADJUSTMENTS
  • PART A - VICTIM-RELATED ADJUSTMENTS
  • PART B - ROLE IN THE OFFENSE
  • PART C - OBSTRUCTION AND RELATED ADJUSTMENTS
  • PART E - ACCEPTANCE OF RESPONSIBILITY
  • §3E1.1.Acceptance of Responsibility
  • PART A - CRIMINAL HISTORY
  • PART B - CAREER OFFENDERS AND CRIMINAL LIVELIHOOD
  • CHAPTER FIVE - DETERMINING THE SENTENCE
  • 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 J - RELIEF FROM DISABILITY
  • 1.SUBSTANTIAL ASSISTANCE TO AUTHORITIES
  • 2.OTHER GROUNDS FOR DEPARTURE
  • 3.EARLY DISPOSITION PROGRAMS
  • PART A - SENTENCING PROCEDURES
  • 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,
  • 1.REMEDYING HARM FROM CRIMINAL CONDUCT
  • 2.EFFECTIVE COMPLIANCE AND ETHICS PROGRAM
  • §8B2.1.Effective Compliance and Ethics Program
  • 1.DETERMINING THE FINE - CRIMINAL PURPOSE ORGANIZATIONS
  • §8C1.1.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

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 bank robber. frightened bystanders. In addition. carried out in the spring and early summer of 1986. however. 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). After all. incremental improvements in the status quo. 2009 GUIDELINES MANUAL Ch. The guidelines may prove acceptable. The Commission’s initial efforts in this direction. A The Commission did not simply copy estimates of pre-guidelines practice as revealed by the data. commentary in the guidelines explains others. it departed from the data at different points for various important reasons. as in the case of the Anti-Drug Abuse Act of 1986 that imposed increased and mandatory minimum sentences. suggested or required departure. 4. and therefore effective sentencing system.November 1. this type of system. uniform. 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). (a) Real Offense vs. 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. injured a teller. empirical data. even to formalize and rationalize the status quo. A pure real offense system would sentence on the basis of all identifiable conduct. and raced away damaging property during his escape. proportional. 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. proved unproductive. refused to stop when ordered. the Commission developed these guidelines as a practical effort toward the achievement of a more honest. this introduction briefly discusses several of those issues. equitable. as determined in a presentence report. The sentencing court and the parole commission took account of the conduct in which the defendant actually engaged. Congressional statutes. but the first step in an evolutionary process. who believe the best is often the enemy of the good. mostly for practical reasons. such as punishing economic crime less severely than other apparently equivalent behavior. Charge Offense Sentencing. To make such a system work. for example. or before a parole commission hearing officer. taken $50. After spending considerable time and resources exploring alternative approaches. 1 Pt. at the sentencing hearing. to those who seek more modest. and builds upon. Rather. and who recognize that these guidelines are. the data revealed inconsistencies in treatment. The Commission initially sought to develop a pure real offense system. how to add them up. the guidelines represent an approach that begins with. Despite these policy-oriented departures from pre-guidelines practice. in a sense. and what kinds of procedures the courts should use to determine the presence or absence of disputed factual elements. the pre-guidelines sentencing system was.000. as the Act contemplates. 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. even though establishing offense values on this basis would help eliminate disparity because the data represent averages. would have required the Commission to decide precisely which harms to take into account. for example. might have used a gun. As an aid to understanding the guidelines.

The Commission intends the sentencing courts to treat each guideline as carving out a "heartland.19 (Post-Sentencing Rehabilitative Efforts) list several factors that the court cannot take into account as grounds for departure. the third sentence of §5H1. Religion. for example. the Commission will closely monitor charging and plea agreement practices and will make appropriate adjustments should they become necessary. does contain a significant number of real offense elements. Sex. one to which a particular guideline linguistically applies but where conduct significantly differs from the norm. and adjustments. §5H1. For one thing. A GUIDELINES MANUAL November 1. 1 Pt. whether or not mentioned anywhere else in the guidelines.Ch. Finally. 2009 for the large number of diverse harms arising in different circumstances. a sentencing court may control any inappropriate manipulation of the indictment through use of its departure power. 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. Moreover. National Origin. With those specific exceptions. not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.000. the guidelines treat a three-count indictment. When a court finds an atypical case. Creed. –6– . cross references. specific offense characteristics. quadratic roots and other mathematical operations that the Commission considered too complex to be workable. however. For example. In the Commission’s view. and §5K2. that could constitute grounds for departure in an unusual case. the presence of a gun." a set of typical cases embodying the conduct that each guideline describes. (b) Departures. such a system risked return to wide disparity in sentencing practice.C.000.12 (Coercion and Duress). through alternative base offense levels. the guidelines take account of a number of important. or the amount of money actually taken. or to a degree. The Commission recognized that a charge offense system has drawbacks of its own. Including Drug or Alcohol Dependence or Abuse). commonly occurring real offense elements such as role in the offense. For another.4 (Physical Condition.12 (Lack of Guidance as a Youth and Similar Circumstances). 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. 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. This system. 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. 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. the last sentence of §5K2. the court may consider whether a departure is warranted. the Commission does not intend to limit the kinds of factors." 18 U. Furthermore. and SocioEconomic Status). Section 5H1. The effort proposed as a solution to these problems required the use of. 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. Of course. the Commission moved closer to a charge offense system. the same as a single-count indictment charging sale of 300 grams of heroin or theft of $30. however. each count of which charges sale of 100 grams of heroin or theft of $10. In its initial set of guidelines submitted to Congress in April 1987. § 3553(b).10 (Race.S.

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

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

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

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

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

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

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

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

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

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

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

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

Use of Abbreviated Guideline Titles. 2009 GUIDELINES MANUAL §1B1.November 1. 1989 (see Appendix C. In some cases. and Fraud). and Other Forms of Theft. enhancements under Chapter Two. Fraud and Deceit. November 1.1 (Theft. Amended effective January 15. references to §2B1. in §2A2. Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States) may be abbreviated as follows: §2B1. This parenthetical is provided only for the convenience of the reader and is not intended to have substantive effect. November 1. and determinations may be triggered by the same conduct. 2006 (see Appendix C. use the provision that results in the greater offense level. amendments 545 and 546).—Absent an instruction to the contrary. adjustments under Chapter Three. 2001 (see Appendix C. if a firearm is both discharged and brandished. even though the enhancement and the adjustment both are triggered by the shooting of the officer. Property Damage or Destruction. §1B1.e. amendment 388). amendments 69-72 and 303). November 1. the provision applicable to the discharge of the firearm would be used. 1993 (see Appendix C. 2000 (see Appendix C. but the guidelines authorize the application of only one such provision. the offense conduct charged in the count of the indictment or information of which the defendant was convicted). 1990 (see Appendix C. amendment 1). the adjustments for different degrees of bodily injury (subdivisions (A)-(E)) are not added together.2 of bodily injury.—Whenever a guideline makes reference to another guideline. 2003 (see Appendix C. Forgery. amendment 651). determine the offense guideline section in Chapter Two applicable to the stipulated offense. amendments 591 and 601). the subdivision that best describes the level of bodily injury is used. 6. For example. amendment 617). November 1. 2003 (see Appendix C.1(b)(3) and an official victim adjustment under §3A1. November 1. However. 1988 (see Appendix C. November 1.. Historical Note: Effective November 1. Where two or more guideline provisions appear equally applicable. 1987.2(b)(2). amendment 684).2.g.. 5. such a parenthetical restatement of the guideline heading may be abbreviated for ease of reference. November 1. and determinations under Chapter Four are to be applied cumulatively. 1997 (see Appendix C. November 1. Offenses Involving Stolen Property. amendment 361). (B) Cumulative Application of Multiple Adjustments from Multiple Guidelines. Embezzlement. E. – 19 – . amendment 661). October 27.2. Applicable Guidelines (a) Determine the offense guideline section in Chapter Two (Offense Conduct) applicable to the offense of conviction (i. Property Destruction. amendment 497). adjustments. shooting a police officer during the commission of a robbery may warrant an injury enhancement under §2B3.1 (Larceny. 1991 (see Appendix C. In the case of lengthy guideline headings. 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. a parenthetical restatement of that other guideline’s heading accompanies the initial reference to that other guideline. November 1. such enhancements. For example.

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

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

In such cases. however.2(d) (e. where a conviction on a single count of conspiracy establishes that the defendant conspired to commit three robberies. shall be determined on the basis of the following: (1) (A) all acts and omissions committed. For example. §1B1. and (iv) adjustments in Chapter Three. 2001 (see Appendix C. amendment 438). 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. scheme. commanded. one count of conspiracy to commit the second robbery. 2000 (see Appendix C. 1992 (see Appendix C.3. admits to having committed two additional robberies. amendment 2). if the object offenses specified in the conspiracy count would be grouped together under §3D1.g. Unless otherwise specified. subsection (d) should only be applied with respect to an object offense alleged in the conspiracy count if the court. aided. 2009 offense(s). induced. 1987. November 1. and in the case of a jointly undertaken criminal activity (a criminal plan. Amended effective January 15.. would convict the defendant of conspiring to commit that object offense. 1989 (see Appendix C. Historical Note: Effective November 1. (ii) specific offense characteristics and (iii) cross references in Chapter Two. 4. or willfully caused by the defendant. November 1.3(a)(2) governs consideration of the defendant’s conduct. (B) that occurred during the commission of the offense of conviction. amendments 613 and 617). if the defendant is convicted of one count of robbery but. or enterprise undertaken by the defendant in concert with others. amendment 591). because §1B1. in preparation for that offense. For example.§1B1. and one count of conspiracy to commit the third robbery. endeavor. or in the course of attempting to avoid detection or responsibility for that offense. a conspiracy to steal three government checks) it is not necessary to engage in the foregoing analysis.2 GUIDELINES MANUAL November 1. the guidelines are to be applied as if the defendant had been convicted of three counts of robbery. procured. (i) the base offense level where the guideline specifies more than one base offense level. counseled. Note. amendments 73-75 and 303). the guidelines are to be applied as if the defendant had been convicted of an additional count for each of the offenses stipulated. 1991 (see Appendix C. – 22 – . November 1. abetted. Relevant Conduct (Factors that Determine the Guideline Range) (a) Chapters Two (Offense Conduct) and Three (Adjustments). November 1. all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity. amendment 434). 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. 1988 (see Appendix C. were it sitting as a trier of fact. as part of a plea agreement. whether or not charged as a conspiracy). November 1. the guidelines are to be applied as if the defendant had been convicted on one count of conspiracy to commit the first robbery.

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

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

(b) Acts and omissions aided or abetted by the defendant. 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). 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 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). 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.e. 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.000 is taken and a teller is assaulted and injured. of course. it is not necessary to review alternative provisions under which such accountability might be established. Defendant A is accountable for the entire one-ton shipment of marihuana under subsection (a)(1)(A). Therefore. a defendant may be accountable for particular conduct under more than one subsection of this guideline. In this example. This is conceptually similar to the case of a defendant who transports a suitcase knowing that it contains a controlled substance and. the taking of money was the specific objective of the jointly undertaken criminal activity). the specific objective of the criminal activity he joined was the offloading of the entire shipment). – 25 – . therefore. 2009 GUIDELINES MANUAL §1B1. The specific circumstances of the case (the defendant was one of ten persons off-loading the marihuana in bales) also support this finding. if a defendant’s accountability for particular conduct is established under one provision of this guideline.November 1.3 entire shipment of marihuana by directly participating in the off-loading of that shipment (i. As noted in the preceding paragraph. requirement that the conduct of others be in furtherance of the jointly undertaken criminal activity and reasonably foreseeable (1) Defendant C is the getaway driver in an armed bank robbery in which $15. a defendant may be accountable for particular conduct under more than one subsection. As noted earlier.. Defendant A engaged in a jointly undertaken criminal activity (the scope of which was the importation of the shipment of marihuana). In an actual case. 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). he is accountable for the entire shipment under subsection (a)(1)(A) without regard to the issue of reasonable foreseeability.

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

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

"Harm" includes bodily injury. property damage and any resulting harm. Unless clearly indicated by the guidelines.2(d) had the defendant been convicted of multiple counts. attempted or intended harm (e. §2B1. "Offenses of a character for which §3D1. If the defendant is convicted of multiple counts for the above noted sales. 4.2 (Mishandling of Hazardous or Toxic Substances or Pesticides). §2K1.g. The defendant is convicted of one count charging the completed sale of 30 grams of cocaine.§1B1. See. §2Q1.4 (Arson. where the defendant engaged in three drug sales of 10. subsection (a)(2) applies and the total amount of cocaine (45 grams) involved is used to determine the offense level. the defendant sells 30 grams of cocaine (a violation of 21 U. as part of the same course of conduct or common scheme or plan. §5K2.C. Although Chapter Three. an upward departure may be warranted. 5. If.3 GUIDELINES MANUAL November 1. §2A2. Property Damage by Use of Explosives). or Conspiracy) and the applicable offense guideline. in the particular circumstances. Part D (Multiple Counts) applies to multiple counts of conviction. Subsection (a)(2) merely incorporates by reference the types of offenses set forth in §3D1. the nature of the offense is more appropriately viewed as one jointly undertaken criminal activity or as a number of separate criminal activities.1 (Attempt. thus. the guideline refers only to harm sustained (e. 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. and 20 grams of cocaine. As noted above.2(d) would require the grouping of counts. Solicitation. In a case in which creation of risk is not adequately taken into account by the applicable offense guideline. are of a character for which §3D1.S. and Fraud). §2X1." as used in subsection (a)(2).2(d). § 841) on one occasion and. For example.g.C.2 (Aggravated Assault). the grouping rules of Chapter Three. as discussed above. 3.0 (Grounds for Departure). or Conspiracy)). however. Solicitation.. whether that risk or danger was created is to be considered in determining the offense level. the risk created enters into the determination of the offense level only insofar as it is incorporated into the base offense level. § 846) on another occasion. Property Destruction. See generally §1B1.. as part of the same course of conduct or common scheme or plan.2(d) would require grouping of multiple counts. 15. e. §2B3. multiple counts of conviction are not required for subsection (a)(2) to apply.4 (Information to be Used in Imposing Sentence). although covered by different statutory provisions..1 (Theft. 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. to have been convicted of multiple counts. had the defendant been convicted of multiple counts. it does not limit the scope of subsection (a)(2). Application of this provision does not require the defendant.1 (Robbery)) or to actual.S. If the offense guideline includes creating a risk or danger of harm as a specific offense characteristic. harm that is merely risked is not to be treated as the equivalent of harm that occurred. Therefore. monetary loss.2(d) would require grouping of multiple counts. The two offenses (sale of cocaine and attempted sale of cocaine). applies to offenses for which grouping of counts would be required under §3D1.1 (Attempt. attempts to sell an additional 15 grams of cocaine (a violation of 21 U. in fact. Part D (Multiple Counts) provide that the counts are grouped together. For example. 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. had the defendant been convicted of both counts. – 28 – . subsection (a)(2) applies to offenses of a character for which §3D1.g.

attempt. § 1956".S.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. For the purposes of subsection (a)(2). In the case of a partially completed offense (e. An example of this usage is found in §2A3. (2) The defendant engaged in two cocaine sales constituting part of the same course of conduct or common scheme or plan. he is then convicted in federal court for the second sale. § 1957. an offense involving an attempted theft of $800. – 29 – .1(c)(1). § 1956) would be applied in determining the offense level under §2X3. 2009 GUIDELINES MANUAL §1B1. See Application Note 4 in the Commentary to §2X1. In this example. See Application Note 3(C) of §2S1. conviction under the statute is not required. in §2S1. For example. § 1956 but would not be applied in a case in which the defendant is convicted of a conspiracy under 18 U. Unless such an express direction is included.S.4(a)(2) ("if the offense was committed by the means set forth in 18 U. see §4A1.S.C. Unless otherwise specified. Thus. solicitation.000 and a completed theft of $30. The instant federal offense (the offense of conviction) charges this latter sale.1. Solicitation. he again sold cocaine to the same person.C. the cocaine sales are not separated by an intervening sentence.November 1. 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. 8. 7. the cocaine sale associated with the state conviction is considered as relevant conduct to the instant federal offense. Note. or both. he is arrested by state authorities for the first sale and by federal authorities for the second sale. the inchoate offense (attempt. or conspiracy). the offense level is to be determined in accordance with §2X1. under subsection (a)(2). aiding or abetting.S. accessory after the fact.C.1.1(b)(2)(B) (which is applicable only if the defendant is convicted under 18 U.C. that Application Note 4 is not applicable where the offense level is determined under §2X1. Therefore. Engaging in Monetary Transactions in Property Derived from Unlawful Activity).C.2(a)(1).000). Immediately upon release from prison.1 (Laundering of Monetary Instruments.1 (Attempt. or misprision of felony in respect to that particular statute. not as part of the same course of conduct or common scheme or plan as the offense of conviction. For example. 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.S. The prior state prison sentence is counted under Chapter Four (Criminal History and Criminal Livelihood). however. §2S1. or Conspiracy) whether the conviction is for the substantive offense. subsection (b)(2)(B) applies if the defendant "is convicted under 18 U. The state prison sentence for that sale is not counted as a prior sentence.C. In this case. Examples: (1) The defendant was convicted for the sale of cocaine and sentenced to state prison.. Subsequently. § 1956(h) and the sole object of that conspiracy was to commit an offense set forth in 18 U. 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. 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. solicitation. § 2242").3 6.g.S. using the same accomplices and modus operandi. use of a statutory reference to describe a particular set of circumstances does not require a conviction under the referenced statute.

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. For example. 2009 Note. the conduct for which the defendant is accountable includes all conduct relevant to determining the offense level for the underlying offense that was known. 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. or similarity of modus operandi (the same or similar computer manipulations were used to execute the scheme). or accessory after the fact. In the case of solicitation. and the time interval between the offenses. whereas §1B1. For example. When one of the above factors is absent. or ongoing series of offenses. (B) 10.g. 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). such conduct will be considered relevant conduct under subsection (a)(1). such as common victims. which – 30 – . commonality of purpose (to defraud the group of investors). spree.e. common purpose. the range of conduct that is relevant to determining the applicable offense level (except for the determination of the applicable offense guideline.3 GUIDELINES MANUAL November 1. 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. or reasonably should have been known. by the defendant. 9. Unless otherwise provided. in the absence of more explicit instructions in the context of a specific guideline. in certain cases. they must be substantially connected to each other by at least one common factor. 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. commonality of offenders (the conduct constituted an ongoing conspiracy).. i. (A) Common scheme or plan. misprision. or similar modus operandi.§1B1. 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. the regularity (repetitions) of the offenses. offense conduct associated with a previously imposed sentence may be expressly charged in the offense of conviction. For two or more offenses to constitute part of a common scheme or plan. a stronger presence of at least one of the other factors is required.. a stronger showing of similarity or regularity is necessary to compensate for the absence of temporal proximity. Background: This section prescribes rules for determining the applicable guideline sentencing range. where the conduct alleged to be relevant is relatively remote to the offense of conviction. Subsection (a) establishes a rule of construction by specifying. The nature of the offenses may also be a relevant consideration (e. 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. common accomplices. Same course of conduct. 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. however.

amendment 503). Thus. even if both robberies were part of a single course of conduct or the same scheme or plan. For example.. even though the overall conduct is clear. which provides for grouping of multiple counts arising out of a continuing offense when the offense guideline takes the continuing nature into account.3 is governed by §1B1. in an embezzlement case. amendment 674). amendments 76-78 and 303). November 1. 1989 (see Appendix C. On the other hand. November 1. November 1. In addition. amendment 309). §2K1.e. 1994 (see Appendix C. so that convictions on multiple counts are considered separately in determining the guideline sentencing range. Thus. Subsection (a)(4) requires consideration of any other information specified in the applicable guideline. 2004 (see Appendix C.2(a)). 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.2(d) applies) often involve a pattern of misconduct that cannot readily be broken into discrete. 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. robbery and burglary. 2001 (see Appendix C. 1988 (see Appendix C.) Subsections (a)(1) and (a)(2) adopt different rules because offenses of the character dealt with in subsection (a)(2) (i. the scheme is an element of the offense and each mailing may be the basis for a separate count.November 1. also prevents double counting. However. tax. in a mail fraud case. November 1. 1991 (see Appendix C. 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. §2A1. November 1. when §3D1.2(d). 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. Relying on the entire range of conduct. it is important to take into account the full range of related conduct. than with respect to other offenses such as assault. Conversely. Historical Note: Effective November 1. (This is true whether the defendant is convicted of one or both robberies. to which §3D1. in an embezzlement case. primarily certain property. The reference to §3D1. fraud and drug offenses for which the guidelines depend substantially on quantity. For example. amendment 389). each taking may provide a basis for a separate count. Continuing offenses present similar practical problems. November 1. – 31 – .e. November 1. amendment 439). which provides for grouping together (i. 1990 (see Appendix C.. for example. amendments 617 and 634). amendment 3). a pattern of embezzlement may consist of several acts of taking that cannot separately be identified. in a drug distribution case. Similarly. 2009 GUIDELINES MANUAL §1B1. in a robbery case in which the defendant robbed two banks.2(d). The distinction is made on the basis of §3D1.4 (Arson. 1987.4 (Involuntary Manslaughter) specifies consideration of the defendant’s state of mind. the amount of money taken in one robbery would not be taken into account in determining the guideline range for the other robbery.2(d) does not apply. 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. treating as a single count) all counts charging offenses of a type covered by this subsection. for example. the applicability of subsection (a)(2) does not depend upon whether multiple counts are alleged. Subsection (a)(2) provides for consideration of a broader range of conduct with respect to one class of offenses. appears to be the most reasonable approach to writing workable guidelines for these offenses. regardless of the number of counts that are alleged or on which a conviction is obtained. 1992 (see Appendix C. Another consideration is that in a pattern of small thefts. Amended effective January 15. Property Damage By Use of Explosives) specifies consideration of the risk of harm created. identifiable units that are meaningful for purposes of sentencing.

amendment 303). and special instructions). Commentary Background: This section distinguishes between factors that determine the applicable guideline sentencing range (§1B1. e. November 1. character and conduct of the defendant.3) and information that a court may consider in imposing sentence within that range. (b) (2) (c) If the offense level is determined by a reference to another guideline under subsection (a) or (b)(1) above. 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.. specific offense characteristics.S. 1988 (see Appendix C. § 3661. See 18 U. November 1.S. Some policy statements do. 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. cross references. the court may consider. The section is based on 18 U. any information concerning the background. if the defendant committed two robberies. 1989 (see Appendix C.S. unless otherwise prohibited by law.e. Amended effective January 15.§1B1. or should be considered only for limited purposes.4 §1B1. except as provided in subdivision (2) below. but as part of a plea negotiation entered a guilty plea to only one. the base offense level. the adjustments in Chapter Three (Adjustments) – 32 – . 1987. For example. § 3661. amendment 4). See. §1B1. 1728). and special instructions). however. GUIDELINES MANUAL November 1. 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.5. without limitation..4. cross references. 2000 (see Appendix C.C. and not to the entire offense guideline. Historical Note: Effective November 1. November 1. express a Commission policy that certain factors should not be considered for any purpose. 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. The recodification of this 1970 statute in 1984 with an effective date of 1987 (99 Stat. 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.C. 2004 (see Appendix C. Chapter Five. amendment 674) .C. the base offense level. which recodifies 18 U. amendment 604 ). or whether a departure from the guidelines is warranted. (1) An instruction to use the offense level from another offense guideline refers to the offense level from the entire offense guideline (i. An instruction to use a particular subsection or table from another offense guideline refers only to the particular subsection or table referenced.e. Part H (Specific Offender Characteristics). specific offense characteristics..g. § 3577.

Conspiracy to Defraud by Interference with Governmental Functions). to the guideline for the "underlying offense"). . and special instructions as well as the base offense level. if the guideline reads "2 plus the offense level from §2A2. Where there is more than one such other offense. Such references incorporate the specific offense characteristics.1 (Offering. Commentary Application Notes: 1. A reference to another guideline may direct that such reference is to be used only if it results in a greater offense level. Extortion Under Color of Official Right." but may also appear in the portion of the guideline entitled "Base Offense Level" (e. These references may be to a specific guideline. the offense guideline for such other offense is to be applied. §2A4. 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. cross references.g. degree of injury and motive. In such case. Consistent with the provisions of §1B1. Fraud Involving the Deprivation of the Intangible Right to Honest Services of Public Officials. the most serious such offense (or group of closely related offenses in the case of offenses that would be grouped together under §3D1. Giving. the reference in §2D1.1 (Unlawful Conduct Relating to Racketeer Influenced and Corrupt Organizations).3 (Relevant Conduct). to which §2K2.5 also are determined in respect to the referenced offense guideline. For example. (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.2(a)(1) and (2)).g.. or "Specific Offense Characteristics" (e.. or Transportation of Firearms or Ammunition. 2009 GUIDELINES MANUAL §1B1. only the specific subsection of that other guideline is used. For example. if the conduct involved another offense. Prohibited Transactions Involving Firearms or Ammunition) applies. In such cases.1 (Unlawful Receipt.. if a defendant convicted of possession of a firearm by a felon. except as otherwise expressly provided. the greater offense level means the greater Chapter Two offense level. A reference may also be to a specific subsection of another guideline.1".1(b)(7)). and then increase by 2 levels. References to other offense guidelines are most frequently designated "Cross References. except as otherwise expressly provided. including any applicable adjustments for planning.g.November 1. see the Commentary to §§2C1. 2. In such case." the user would determine the offense level from §2A2. Possession. For situations in which a comparison involving both Chapters Two and Three is necessary.2(d)) is to be used..g. weapon use. or may be more general (e.2.2 (Interstate or Foreign Travel or Transportation in Aid of a Racketeering Enterprise). §2D1.2 (Aggravated Assault). unless the offense guideline expressly provides for consideration of both the Chapter Two offense level and applicable Chapter Three adjustments. A reference may direct that. 2E1.10(a)(1) to "3 plus the offense level from the Drug Quantity Table in §2D1. Soliciting. or Receiving a Bribe. the greater offense level means the offense level taking into account only the Chapter Two offense level. is found to have possessed that – 33 – 3. and 2E1. e.

2004 (see Appendix C. the cross reference at §2K2. 80. the commentary may suggest circumstances which. November 1. the second number is the subpart. 1991 (see Appendix C. is the first guideline in the first subpart in Part B of Chapter Two. in the view of the Commission. §1B1. Significance of Commentary The Commentary that accompanies the guideline sections may serve a number of purposes. Section 2B1. Such commentary is to be treated as the legal equivalent of a policy statement. the commentary may provide background – 34 – . Structure of the Guidelines The guidelines are presented in numbered chapters divided into alphabetical parts. 1987. Policy statements are similarly identified. To illustrate: Historical Note: Effective November 1. and the final number is the guideline. § 3742. 2009 firearm during commission of a series of offenses. amendment 429). amendments 79. §3A1. and 302). the letter represents the part of the chapter.S. subjecting the sentence to possible reversal on appeal. amendment 440). Failure to follow such commentary could constitute an incorrect application of the guidelines. Or. 1995 (see Appendix C. The parts are divided into subparts and individual guidelines.6. 1989 (see Appendix C. §1B1.5 GUIDELINES MANUAL November 1.7. part.C. November 1. Amended effective November 1. November 1. See 18 U. amendment 616). November 1.§1B1. for example. Each guideline is identified by three numbers and a letter corresponding to the chapter. 1992 (see Appendix C. November 1. amendment 666). 2001 (see Appendix C.2 is the second guideline in the first subpart in Part A of Chapter Three. amendment 547). Second. First. Finally. The first number is the chapter. amendment 534). 1987. 1997 (see Appendix C. may warrant departure from the guidelines.1(c) is applied to the offense resulting in the greatest offense level.1. it may interpret the guideline or explain how it is to be applied. Historical Note: Effective November 1. subpart and individual guideline. November 1.

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

Plea Discussions.g. and Related Statements) of the Federal Rules of Criminal Procedure and Rule 410 (Inadmissibility of Pleas. a court may refuse to depart downward on the basis of such information. and not merely as a restriction of the government’s presentation of such information (e.8 GUIDELINES MANUAL November 1. this guideline does not apply to information used against the defendant in a prosecution for perjury. except to the extent provided in the agreement. a downward departure is warranted pursuant to a government motion under §5K1. Although the guideline itself affects only the determination of the guideline range. admits that he assisted in the importation of an additional three kilograms of cocaine. as a corollary. pursuant to an agreement to provide information concerning the unlawful activities of co-conspirators. On occasion the defendant will provide incriminating information to the government during plea negotiation sessions before a cooperation agreement has been reached. and to what extent.. e. In the event no agreement is reached. the use of such information remains protected by this section). subsequent to having entered into a cooperation agreement. the policy of the Commission. As with the statutory provisions governing use immunity. Plea Discussions. 5.§1B1. Under this provision. 2009 Commentary Application Notes: 1. a fact not previously known to the government. In contrast. 4.1 (Career Offender). this admission would not be used to increase his applicable guideline range. is that information prohibited from being used to determine the applicable guideline range shall not be used to depart upward. provides such information to the probation officer preparing the presentence report. giving a false statement. § 6002.1 (Substantial Assistance to Authorities).S.. subsection (b)(5) provides that consideration of such information is appropriate in determining whether. 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. or in the event the defendant otherwise fails to comply with the cooperation agreement. – 36 – . and Related Statements) of the Rules of Evidence. This guideline limits the use of certain incriminating information furnished by a defendant in the context of a defendant-government agreement for the defendant to provide information concerning the unlawful activities of other persons.g. 2. 18 U. for example.C. use of such information in a sentencing proceeding is restricted by Rule 11(f) (Admissibility or Inadmissibility of a Plea.1 (Criminal History Category) and §4B1. The guideline operates as a limitation on the use of such incriminating information in determining the applicable guideline range. 3. 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. where the defendant. if a defendant is arrested in possession of a kilogram of cocaine and. 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.

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

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

269. 706 as amended by 711. Accordingly.—Amendments covered by this policy statement are listed in Appendix C as follows: 126. and 715.— (A) Eligibility. a reduction in the defendant’s term of imprisonment is not authorized under 18 U. § 3582(c)(2) is triggered only by an amendment listed in subsection (c) that lowers the applicable guideline range. 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. 702. 329.C.S. 220 (2005).g. 176. but only within the limits described in subsection (b).S. Public Safety Consideration. § 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. 543 U. Booker.November 1. 454. Post-Sentencing Conduct. 371. 461.C.— (i) In General.C. 130. a further reduction generally would not be appropriate. 516. 341. 606. § 3553(a) in determining: (I) whether a reduction in the defendant’s term of imprisonment is warranted.—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. 484. the court shall consider the factors set forth in 18 U.C. but only within the limits described in subsection (b). 433. Factors for Consideration. (c) Covered Amendments. § 3582(c)(2). § 3553(a) and United States v. a statutory mandatory minimum term of imprisonment). 380.—Eligibility for consideration under 18 U. 657.S. 379.—In no event may the reduced term of imprisonment be less than the term of imprisonment the defendant has already served. 156. 490. 506.10 constituted a non-guideline sentence determined pursuant to 18 U. 599.S. and (II) the extent of such reduction. 591. Application of Subsection (a).—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 – .S.S.—Consistent with 18 U. 2009 GUIDELINES MANUAL §1B1. (C) Prohibition. Commentary Application Notes: 1.C.. and (II) the extent of such reduction. 499. 505.

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

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

98th Cong. November 1. (b) (2) (3) Commentary Application Notes: 1. amendment 716). one guideline section from one edition of the Guidelines Manual and another guideline section from a different edition of the Guidelines Manual. the court shall use the Guidelines Manual in effect on the date that the offense of conviction was committed. (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. Subsection (b)(2) provides that if an earlier edition of the Guidelines Manual is used. November 1. amendment 360). and the second after. 1991. amendment 423). Amended effective November 1. amendment 469). November 5. 1991 (see Appendix C. amendment 662). amendment 306). The Guidelines Manual in effect on a particular date shall be applied in its entirety. 1992 (see Appendix C. the court shall consider subsequent amendments.§1B1. 2007 (see Appendix C. except that subsequent clarifying amendments are to be considered. He is to be sentenced in December 1992. 180 (1983). amendment 536). amendment 710). November 1. 1st Sess. If the defendant is convicted of two offenses. * So in original. amendments 712 and 713). The court shall not apply. Historical Note: Effective November 1. 1997 (see Appendix C. 1989 (see Appendix C. a revised edition of the Guidelines Manual became effective. November 1. 2003 (see Appendix C. 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.10 GUIDELINES MANUAL November 1. Probably should be "to fall above the amended guidelines". 2000 (see Appendix C." S. November 1. 225. 2008 (see Appendix C. 1994 (see Appendix C. amendment 502). 1990 (see Appendix C. 2009 of existing sentences falling above the old guidelines* or when there is only a minor downward adjustment in the guidelines. amendment 548). to the extent that such amendments are clarifying rather than substantive changes. it is to be used in its entirety. However. 1995 (see Appendix C. 1993 (see Appendix C. November 1. The Committee does not believe the courts should be burdened with adjustments in these cases..11. Rep. 2008 (see Appendix C. if a court applies an earlier edition of the Guidelines Manual. amendment 504). the revised edition of the Guidelines Manual is to be applied to both offenses. November 1. May 1. Example: A defendant is convicted of an antitrust offense committed in November 1989. the first committed before. November 1. amendment 607). the Commission raised the – 42 – . March 3. Effective November 1. §1B1. for example.

2009 GUIDELINES MANUAL §1B1. criminal history category of I).. the revised edition of the Guidelines Manual is to be applied to both offenses. the date of October 28. 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. a revised edition of the Guidelines Manual became effective. It shall not apply. Because the defendant completed the second offense after the amendment to the guidelines took effect.C. the defendant has a guideline range of 2-8 months (final offense level of 8.S. criminal history category of I). 98th Cong. if a defendant pleads guilty to a single count of embezzlement that occurred after the most recent edition of the Guidelines Manual became effective. and the second after. Subsection (b)(2) provides that the Guidelines Manual in effect on a particular date shall be applied in its entirety.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. the first committed before. For example. 1st Sess. related embezzlement offenses that may have occurred prior to the effective date of the guideline amendments) for the offense of conviction. § 9 of the United States Constitution. Under 18 U. 1991 and October 28.November 1. the court is to apply the guidelines and policy statements in effect at the time of sentencing. if the offense of conviction (i. For example. the guideline range applicable in sentencing will encompass any relevant conduct (e. 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. 1992. Congress did not believe that the ex post facto clause would apply to amended sentencing guidelines. the ex post facto clause does not prevent determining the sentence for that count based on the amended guidelines. 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. Under subsection (b)(1).e. Rep.. S. No. the last date of the offense of conviction is the controlling date for ex post facto purposes. the defendant has a guideline range of 4-10 months (final offense level of 9. 77-78 (1983). 225. 1989). This is true even if the defendant’s conduct relevant to the determination of the guideline range under §1B1. Under the 1989 edition of the Guidelines Manual (effective November 1. Under the 1992 edition of the Guidelines Manual (effective November 1.11 base offense level for antitrust offenses. Subsection (b)(3) provides that where the defendant is convicted of two offenses. The same would be true for a defendant convicted of two counts of embezzlement. Effective November 1. for example. 1992). it shall apply the 1989 edition of the Guidelines Manual in its entirety. 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 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. While the Commission concurs in the policy expressed by Congress. 2. 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. one committed before the amendments – 43 – . § 3553. 1991. 1991 is the controlling date for ex post facto purposes. even if the revised edition results in an increased penalty for the first offense.g.. 1991 (after a revised Guideline Manual took effect).

921 F. Moreover.. Consequently. denied.2d 29 (4th Cir. United States v. a contrary conclusion would mean that such defendant was subject to a lower guideline range than if convicted only of the second offense. 5G1.5.C. 291 (1992). even in a complex case involving multiple counts that occurred under several different versions of the Guidelines Manual. cert. 503 U. Under the guideline sentencing system. 493 U. drug quantities as relevant conduct for the count of conviction. 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.2d 697 (6th Cir. amendment 475).S. Thus. see also United States v. 1062 (1990). 1990) (similar). 1987. Cusack. it will not be necessary to compare more than two manuals to determine the applicable guideline range -. R. In this example. However. Therefore. noting that habitual offender statutes routinely augment punishment for an offense of conviction based on acts committed before a law is passed). even if there are multiple counts of conviction (see §§3D1. and the second after. 2009 were enacted.2(d). 1993 (see Appendix C. 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). 901 F.the manual in effect at the time the last offense of conviction was completed and the manual in effect at the time of sentencing. See United States v. §1B1. 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. 1992 (see Appendix C. amendment 442).1-3D1. if a defendant is sentenced in January 1992 for a bank robbery committed in October 1988 and one committed in November 1991. a single sentencing range is determined based on the defendant’s overall conduct. Amended effective November 1.11 GUIDELINES MANUAL November 1. the November 1991 Guidelines Manual should be used to determine a combined guideline range for both counts. 1993 (see Appendix C. 1989) (upholding inclusion of pre-November 1.12. Ykema.S. Stephenson. See generally United States v. 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. §§ 5031-5042). 1989) (similar). 886 F. United States v.C. Historical Note: Effective November 1. amendment 474). The ex post facto clause does not distinguish between groupable and nongroupable offenses. Congress’s directive to apply the sentencing guidelines in effect at the time of sentencing must be followed.2).§1B1. Allen. 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. – 44 – .S. 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.2d 143 (8th Cir.2d 438 (2d Cir. and unless that clause would be violated. the ex post facto clause would not bar application of the amended guideline to the first conviction. 887 F.L.

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

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

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

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

see Appendix A (Statutory Index). November 1. Upward Departure Provision. 1987. November 1. amendment 310). 2199. November 1. Application Note: 1. For additional statutory provision(s). 2002 (see Appendix C. see Appendix A (Statutory Index).—If the defendant’s conduct was exceptionally heinous. 2009 GUIDELINES MANUAL §2A1. 2291.C.November 1. 2332b(a)(1). November 1. 2002 (see Appendix C. amendment 476). §§ 1112. November 1. Amended effective November 1. §2A1. Historical Note: Effective November 1.C. amendment 663). amendment 637).S. 1841(a)(2)(C). amendment 685). Amended effective November 1. 1989 (see Appendix C.8 (Extreme Conduct). 1841(a)(2)(C). 1990 (see Appendix C. amendments 699 and 700). §2A1. §2A1. brutal. See §5K2. or degrading to the victim. 2282A. if the offense involved criminally negligent conduct. 2340A. 2332b(a)(1). amendment 637). November 1. November 1. 1993 (see Appendix C. 2006 (see Appendix C. 2007 (see Appendix C. November 1. 1987. amendments 699 and 700). cruel.2. Voluntary Manslaughter (a) Base Offense Level: 29 Commentary Statutory Provisions: 18 U. amendment 699). Historical Note: Effective November 1. or – 49 – . 2004 (see Appendix C. amendment 663).S. amendment 82). 2291. Involuntary Manslaughter (a) Base Offense Level: (1) 12. 1987. Amended effective November 1.4. Second Degree Murder (a) Base Offense Level: 38 Commentary Statutory Provisions: 18 U.3. 2006 (see Appendix C. amendment 663). 2006 (see Appendix C. For additional statutory provision(s). 2002 (see Appendix C. amendment 637). 2199. 2004 (see Appendix C. 2007 (see Appendix C. §§ 1111. November 1. This guideline applies when a sentence of death is not imposed under those specific provisions. amendment 685). Historical Note: Effective November 1. 2007 (see Appendix C.4 imposed under the specific provisions contained in that statute. November 1. November 1. 2004 (see Appendix C. November 1. amendment 685). an upward departure may be warranted.

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

If the offense involved the offer or the receipt of anything of pecuniary value for undertaking the murder. or 27. (2) – 51 – .1 (Assault with Intent to Commit Murder. apply §2A1. 2004 (see Appendix C. Attempted Murder). (2) (b) Specific Offense Characteristics (1) If (A) the victim sustained permanent or life-threatening bodily injury. 371. if the object of the offense would have constituted first degree murder. amendment 663).1 (First Degree Murder). Amended effective November 1. increase by 4 levels. amendment 311). Assault with Intent to Commit Murder. (c) Cross References (1) If the offense resulted in the death of a victim.C. increase by 4 levels. 373.1.November 1.S. * * * * * 2. §§ 351(d). (B) the victim sustained serious bodily injury. apply §2A2. 2009 GUIDELINES MANUAL §2A2. (2) Commentary Statutory Provisions: 18 U.1 (b) Specific Offense Characteristic (1) If the offense involved the offer or the receipt of anything of pecuniary value for undertaking the murder. Attempted Murder (a) Base Offense Level: (1) 33. 1990 (see Appendix C. ASSAULT §2A2. increase by 2 levels. otherwise. 1117. or (C) the degree of injury is between that specified in subdivisions (A) and (B). Historical Note: Effective November 1. increase by 4 levels. If the offense resulted in an attempted murder or assault with intent to commit murder. increase by 3 levels. 1751(d).

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

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

e. the structure follows §2A2. The enhancement in subsection (b)(6) is cumulative to the adjustment in §3A1. 1997 (see Appendix C.C. Application of Official Victim Adjustment. the involvement of a dangerous weapon with intent to cause bodily injury. amendment 637). 3. 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"). Amended effective November 1.. or the intent to commit another felony. 4. §2A2. Attempted Murder). In such a case. luring the victim to a specific location or wearing a ski mask to prevent identification would constitute more than minimal planning. §§ 111 and 115. November 1. November 1. otherwise. amendment 311). (2) – 54 – .1 (Criminal Sexual Abuse. This guideline also covers attempted manslaughter and assault with intent to commit manslaughter. 2001 (see Appendix C.1.§2A2. amendment 663). even if application of the base offense level and the weapon enhancement is based on the same conduct. Such offenses occasionally may involve planning or be committed for hire. Consequently. November 1. amendment 549).2 (Official Victim) in order to address adequately the directive in section 11008(e)(2)(D) of the Act. 2006 (see Appendix C. serious bodily injury. Minor Assault (a) Base Offense Level: (1) 7. Assault with intent to commit murder is covered by §2A2. or 4.S. Historical Note: Effective November 1. 2007 (see Appendix C. or if a dangerous weapon (including a firearm) was possessed and its use was threatened. amendment 699). i. 1989 (see Appendix C.2 GUIDELINES M ANUAL November 1.1 (Assault with Intent to Commit Murder. 1987. 2002 (see Appendix C. 1995 (see Appendix C. amendment 614). 1990 (see Appendix C.3. amendments 85 and 86). 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. Public Law 107–273. Background: This guideline covers felonious assaults that are more serious than minor assaults because of the presence of an aggravating factor. amendment 534).—In a case involving a dangerous weapon with intent to cause bodily injury. November 1. 2009 present would not alone constitute more than minimal planning.—If subsection (b)(6) applies. 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. November 1.2 (Official Victim) also shall apply. Assault with intent to commit rape is covered by §2A3. the base offense level and the weapon enhancement in subsection (b)(2) take into account different aspects of the offense. 2004 (see Appendix C. By contrast. §3A1. if the offense involved physical contact. November 1. the court shall apply both the base offense level and subsection (b)(2). amendment 685). November 1. Application of Subsection (b)(2). Attempt to Commit Criminal Sexual Abuse).

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

2009 (including a firearm) was possessed and its use was threatened. the base offense level does not incorporate the possibility that the defendant may create a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement official (although an offense under 18 U.C.—The base offense level incorporates the fact that the victim was a governmental officer performing official duties. increase by 3 levels. 1989 (see Appendix C. Commentary Statutory Provisions: 18 U. apply §3C1. an upward departure may be warranted.2 (Reckless Endangerment During Flight).4 GUIDELINES M ANUAL November 1. amendment 699). the offense level is determined under §2A2. and "firearm" have the meaning given those terms in Application Note 1 of the Commentary to §1B1. 2237(a)(1). 1992 (see Appendix C. 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. November 1. increase by 2 levels. Application Notes: 1. November 1. Amended effective November 1. apply §2A2. "bodily injury". (2) (c) If the victim sustained bodily injury. do not apply §3A1. 2. Therefore. (a)(2)(A). amendment 64). § 758 for fleeing or evading a law enforcement checkpoint at high speed will often.—For purposes of this guideline. amendment 550). see Appendix A (Statutory Index). amendment 679).1 (Application Instructions). §§ 111. For additional statutory provision(s). amendment 443). involve the creation of that risk).—The base offense level does not assume any significant disruption of governmental functions. November 1.7 (Disruption of Governmental Function).§2A2. 2004 (see Appendix C. 1501. Historical Note: Effective October 15.2 (Official Victim) unless. 1988 (see Appendix C.C. but not always.2 (Aggravated Assault). pursuant to subsection (c). 1502. amendment 663). "dangerous weapon". 1997 (see Appendix C. Application of Certain Chapter Three Adjustments. See §5K2. Upward Departure Provision. Conversely. 2007 (see Appendix C. 3056(d). November 1. amendments 89 and 90). November 1. In situations involving such disruption. * * * * * – 56 – . 2005 (see Appendix C.S. 3.2 (Aggravated Assault). Definitions.S.

1 3. to facilitate transportation or travel. or (B) the use of a computer or an interactive computer service. (A) If the victim sustained permanent or life-threatening bodily injury. §2A3. increase by 3 levels.S.C. by a minor or a participant. care. or coerce a minor to engage in prohibited sexual conduct. increase by 4 levels. increase by 2 levels. Specific Offense Characteristics (1) If the offense involved conduct described in 18 U. – 57 – .1 (First Degree Murder). If the victim was abducted. increase by 4 levels. Attempt to Commit Criminal Sexual Abuse (a) Base Offense Level: (1) (2) (b) 38. increase by 2 levels.S. amendment 701). increase by 4 levels. or (B) a person held in the custody of a correctional facility. (B) if the victim sustained serious bodily injury. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States.November 1.1. increase by 4 levels. or if. If. or (B) the victim had attained the age of twelve years but had not attained the age of sixteen years. CRIMINAL SEXUAL ABUSE AND OFFENSES RELATED TO REGISTRATION AS A SEX OFFENDER Historical Note: Effective November 1.C. If subsection (a)(2) applies and (A) the victim had not attained the age of twelve years. the offense involved (A) the knowing misrepresentation of a participant’s identity. increase by 2 levels. Criminal Sexual Abuse. or (C) if the degree of injury is between that specified in subdivisions (A) and (B). if the defendant was convicted under 18 U. If the victim was (A) in the custody. 1987.S. entice.C. to engage in prohibited sexual conduct. Amended effective November 1. § 2241(a) or (b). or 30. 2007 (see Appendix C. induce. 2009 GUIDELINES MANUAL §2A3. apply §2A1. otherwise. if the resulting offense level is greater than that determined above. increase by 2 levels. to persuade. or supervisory control of the defendant. (2) (3) (4) (5) (6) (c) Cross References (1) If a victim was killed under circumstances that would constitute murder under 18 U. § 2241(c).

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

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

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

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

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

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

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

entice.4. 2001 (see Appendix C.4 3. (2) (3) (b) Specific Offense Characteristics (1) If the victim had not attained the age of twelve years. November 1. 2009 GUIDELINES MANUAL §2A3. if the offense involved conduct described in 18 U. increase by 2 levels.3. if the offense involved conduct described in 18 U. (2) (3) (4) (5) (c) Cross References (1) If the offense involved criminal sexual abuse or attempt to commit – 65 – . otherwise. or 12. amendment 511). November 1.—Do not apply §3B1.C. §2A3. increase by 2 levels. Amended effective November 1. amendment 94). November 1. Historical Note: Effective November 1. amendment 592). If the victim was in the custody. 2000 (see Appendix C. Inapplicability of §3B1. Application of Subsection (b)(2). If a computer or an interactive computer service was used to persuade. or coerce a minor to engage in prohibited sexual conduct. or supervisory control of the minor. amendment 701). induce. 1995 (see Appendix C.November 1. § 2241(a) or (b). or coerce a minor to engage in prohibited sexual conduct. 2007 (see Appendix C. and the victim had attained the age of twelve years but had not attained the age of sixteen years. increase to level 22. entice. increase by 2 levels. increase by 2 levels. 1987. § 2242.—Subsection (b)(2) provides an enhancement if a computer or an interactive computer service was used to persuade. 1989 (see Appendix C. amendment 615). If the base offense level is determined under subsection (a)(1) or (2). 16. If the offense involved the knowing misrepresentation of a participant’s identity to persuade. care. or coerce a minor to engage in prohibited sexual conduct. Subsection (b)(2) is intended to apply only to the use of a computer or an interactive computer service to communicate directly with a minor or with a person who exercises custody. or supervisory control of the defendant. November 1.S.3 (Abuse of Position of Trust or Use of Special Skill). but if the resulting offense level is less than 22. 2004 (see Appendix C. entice. amendment 664). induce.C. care. increase by 4 levels. 4. Abusive Sexual Contact or Attempt to Commit Abusive Sexual Contact (a) Base Offense Level: (1) 20.S. November 1. induce.

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

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

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

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

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

if the resulting offense level is greater than that determined above. or otherwise takes such conduct into account. for example.C. subject to a possible 3-level reduction under §2X1.C. in any other case. For additional statutory provision(s). 2251. or Conspiracy) requires that the court apply any adjustment that can be determined with reasonable certainty. 351(b). 4.1 (Application Instructions). § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States. Therefore. if an offense involved conspiracy to kidnap for the purpose of committing murder. Commentary Statutory Provisions: 18 U. attempt.C. 2009 GUIDELINES MANUAL §2A4. 1201. Application Notes: 1. "A dangerous weapon was used" means that a firearm was discharged. subsection (b)(7) would reference first degree murder (resulting in an offense level of 43. 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. For purposes of this guideline— Definitions of "serious bodily injury" and "permanent or life-threatening bodily injury" are found in the Commentary to §1B1. or (B) 4 plus the offense level from the offense guideline applicable to that other offense. Similarly. (c) Cross Reference (1) If the victim was killed under circumstances that would constitute murder under 18 U. Solicitation. In the case of a conspiracy.November 1. and 24212423.1(b)). 3.S. which is taken into account in the specific offense characteristic under subsection (b)(5). "Sexually exploited" includes offenses set forth in 18 U. 2340A. the offense referenced under subsection (b)(7) would be the offense of first degree murder. §§ 115(b)(2). 1203. abduction. 2. §2X1. but in no event greater than level 43. "serious bodily injury" means conduct other than criminal sexual abuse. see Appendix A (Statutory Index). However.S.1 (Application Instructions)).1 (First Degree Murder). for purposes of this guideline. – 71 – . for example. or unlawful restraint. apply §2A1.1 (Attempt. §§ 2241-2244. 1751(b). or a "firearm" or "dangerous weapon" was "otherwise used" (as defined in the Commentary to §1B1.S. (d).1 applicable to that other offense if such offense guideline includes an adjustment for kidnapping. or solicitation to kidnap.

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

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

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

HOAXES. (D). Committing Certain Crimes Aboard Aircraft (a) Base Offense Level: The offense level applicable to the underlying offense. Threatening or Harassing Communications. or (E) that did not involve a threat to injure a person or property. an upward departure may be warranted. 1989 (see Appendix C. 2009 GUIDELINES MANUAL §2A6. 2006 (see Appendix C. increase by 2 levels.S. November 1. amendment 549).3. Amended effective November 1. amendment 65). § 1521 and the offense involved more than two false liens or encumbrances. Hoaxes. False Liens (a) Base Offense Level: (1) (2) 12. or (B) the defendant is convicted under 18 U.C. (b) Specific Offense Characteristics (1) If the offense involved any conduct evidencing an intent to carry out such threat. THREATENING OR HARASSING COMMUNICATIONS.S.C. "Underlying offense" refers to the offense listed in 49 U.S. if the defendant is convicted of an offense under 47 U. 1997 (see Appendix C. Application Notes: 1. §2A6. 1987. or 6.1. * * * * * 6.C. Commentary Statutory Provision: 49 U.C. (2) – 75 – . 1995 (see Appendix C.November 1.C. If (A) the offense involved more than two threats. increase by 6 levels. November 1.S. STALKING. Amended effective November 1. AND DOMESTIC VIOLENCE Historical Note: Effective November 1. amendment 534). 2. § 223(a)(1)(C). Historical Note: Effective October 15.S. amendment 686). If the conduct intentionally or recklessly endangered the safety of the aircraft or passengers. amendment 98). § 46506 (formerly 49 U.1 §2A5. 1988 (see Appendix C. § 46506 of which the defendant is convicted. § 1472(k)(1)).

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

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

any conduct that occurred prior to or during the offense. – 78 – . "Pattern of activity involving stalking. 2009 Commentary Statutory Provisions: 18 U.S. however. § 2266(2) and (7). 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. such travel. that person or an immediate family member of that person. because the more serious conduct will be covered by another offense guideline from Chapter Two. § 115(c)(2). § 2261A. or as a result of. under the totality of the circumstances. or serious bodily injury to.S. threatening. 3. harassing. §2A2. For example. In determining whether subsection (b)(1)(D) applies. Application Notes: 1. if the resulting offense level is greater. harassing. Part A (Criminal History). or intimidate another person and. then for purposes of determining whether subsection (b)(1)(D) applies. 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). injure. harass. For example.2 GUIDELINES M ANUAL November 1.1 (Application Instructions). 2.§2A6. respectively. or assaulting the same victim" means any combination of two or more separate instances of stalking. For example. placing the person in reasonable fear of death or serious bodily injury to that person or an immediate family member of that person. in the course of. a single instance of stalking accompanied by a separate instance of threatening. "Course of conduct" and "spouse or intimate partner" have the meaning given those terms in 18 U. 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. and (B) includes a spouse or intimate partner. §§ 2261-2262.C.C. If the offense involved aggravating factors more serious than the factors listed in subsection (b)(1). whether or not such conduct resulted in a conviction. considering only those prior acts of stalking the victim that have a substantial and direct connection to the offense. See 18 U. Part A. conduct that occurred prior to the offense must be substantially and directly connected to the offense. "Immediate family member" (A) has the meaning given that term in 18 U. "Stalking" means (A) traveling with the intent to kill.C. or assaulting the same victim constitutes a pattern of activity for purposes of this guideline. threatening.C. the court shall consider. For purposes of this guideline: "Bodily injury" and "dangerous weapon" are defined in the Commentary to §1B1. the court shall look to the totality of the circumstances. or assaulting the same victim.S. Prior convictions taken into account under subsection (b)(1)(D) are also counted for purposes of determining criminal history points pursuant to Chapter Four. harassing.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.S. the cross reference in subsection (c) most likely will apply.

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

THEFT. Larceny. counterfeiting (other than offenses involving altered or counterfeit bearer obligations of the United States). Offenses Involving Stolen Property. Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States (a) Base Offense Level: (1) 7. if (A) the defendant was convicted of an offense referenced to this guideline.000 More than $2. fraud.000 More than $10. These guidelines apply to offenses prosecuted under a wide variety of federal statutes.000.§2B1.000 More than $1. transactions in stolen goods. and simple property damage or destruction. Forgery. as well as offenses that arise under the Assimilative Crimes Act. §2B1. 1989 (see Appendix C. EMBEZZLEMENT. 2001 (see Appendix C.000 More than $120. embezzlement. Embezzlement. forgery.1 GUIDELINES M ANUAL November 1. 1987.BASIC ECONOMIC OFFENSES 1. PROPERTY DESTRUCTION. Historical Note: Effective November 1.000 More than $70.000 – 80 – Increase in Level no increase add 2 add 4 add 6 add 8 add 10 add 12 add 14 add 16 add 18 .500. AND OFFENSES INVOLVING FRAUD OR DECEIT Introductory Commentary These sections address basic forms of property offenses: theft.000 More than $200. Part K (Offenses Involving Public Safety)). November 1. amendment 303). amendment 617). (2) (b) Specific Offense Characteristics (1) If the loss exceeded $5. and Other Forms of Theft. and (B) that offense of conviction has a statutory maximum term of imprisonment of 20 years or more. (Arson is dealt with separately in Chapter Two. increase the offense level as follows: Loss (Apply the Greatest) (A) (B) (C) (D) (E) (F) (G) (H) (I) (J) $5. RECEIPT OF STOLEN PROPERTY.000 More than $400. Amended effective November 1.000 or less More than $5. Property Damage or Destruction.000 More than $30. insider trading. otherwise.000. 2009 PART B .1. or 6. Fraud and Deceit.

If the offense involved misappropriation of a trade secret and the defendant knew or intended that the offense would benefit a foreign government. increase by 2 levels. increase by 2 levels. increase by 2 levels. decree. or furnishing financial assistance for an institution of higher education.000.000 (Apply the greatest) If the offense— (A) (i) involved 10 or more victims. or political organization. If the resulting offense level is less than level 10.000 More than $100.000. or trafficking in. religious. increase by 2 levels. (C) a violation of any prior. increase by 2 levels. educational. or participated in relocating. a fraudulent scheme to another jurisdiction to evade law enforcement or regulatory – 81 – (4) (5) (6) (7) (8) (9) . or (D) a misrepresentation to a consumer in connection with obtaining. injunction.000 More than $200. If the offense involved (A) a misrepresentation that the defendant was acting on behalf of a charitable.November 1. increase by 6 levels.S. foreign instrumentality. or a government agency. If the offense involved receiving stolen property. increase by 2 levels. (K) (L) (M) (N) (O) (P) (2) More than $7. or process not addressed elsewhere in the guidelines. If (A) the defendant was convicted of an offense under 18 U. and (B) the offense involved obtaining electronic mail addresses through improper means.000. destruction of. If the offense involved theft of. or (ii) was committed through mass-marketing. increase to level 10.000 More than $400.000 More than $20.000 More than $50. 2009 GUIDELINES MANUAL §2B1. (B) (C) (3) If the offense involved a theft from the person of another. increase by 4 levels. and the defendant was a person in the business of receiving and selling stolen property. involved 50 or more victims.1 add 20 add 22 add 24 add 26 add 28 add 30. If (A) the defendant relocated. § 1037. specific judicial or administrative order. damage to. providing. or foreign agent.000.000.C. property from a national cemetery or veterans’ memorial. or involved 250 or more victims.000. (B) a misrepresentation or other fraudulent action during the course of a bankruptcy proceeding. increase by 2 levels.

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

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

1 (Unlawful Receipt. Unlawful Sale. 6821. Transportation. 60123(b). or Destruction of. 6o. 6c. 1702. (a)(5). (2) If the offense involved arson. 1363. 80b-6. fictitious. 1992(a)(1).S. 657. 1369. 471-473.S. – 84 – .C. § 2401f. Transportation. 500.g. or § 1343). 656.—For purposes of this guideline: "Cultural heritage resource" has the meaning given that term in Application Note 1 of the Commentary to §2B1. 2701. (3) (4) Commentary Statutory Provisions: 7 U. 1348. or Destruction of. 77e.S. 1831. 285-289. Purchase. "Equity securities" has the meaning given that term in section 3(a)(11) of the Securities Exchange Act of 1934 (15 U. or §2K2. Property Damage by Use of Explosives). 1001-1008. or fraudulent statements or representations generally (e. 30170. 42 U. or property damage by use of explosives. 78ff. Exchange. 2291.C. as appropriate. Exchange. §§ 38. 553(a)(1). 664.S. 1361. 23. if the resulting offense level is greater than that determined above. § 657. trust company. § 501(c). 659. or Transportation of Firearms or Ammunition.C. 1350. Unlawful Sale. 18 U. 1025. Definitions. 1341-1344. Purchase.S. 1040. 78j. 2282A. and (C) the conduct set forth in the count of conviction establishes an offense specifically covered by another guideline in Chapter Two (Offense Conduct). § 1006. 29 U. 1026. 1028. apply §2B1. any state or foreign bank.1 GUIDELINES M ANUAL November 1. 77q. 2312-2317. 2282B. 1016-1022.5 (Theft of. 1708. 13. 510. 2332b(a)(1). For additional statutory provision(s).S. 1010-1014. § 1005. 225. "Financial institution" includes any institution described in 18 U. § 1341.§2B1. 2009 Materials. §§ 50.S. 641. or Receipt of Cultural Heritage Resources).C. see Appendix A (Statutory Index). including destruction of mail. 18 U. Prohibited Transactions Involving Explosive Materials). Damage to.C. §§ 14915.C. 1030(a)(4)-(5). Damage to. apply that other guideline.S. Possession. apply §2K1. 6b.C. is involved). If (A) neither subdivision (1) nor (2) of this subsection applies. Application Notes: 1. 15 U. § 1011. 49 U. 2113(b). 46317(a).5 (Theft of. § 1007. 1703 (if vandalism or malicious mischief.. § 656. 1644. 1029. 1031. Cultural Heritage Resources. Cultural Heritage Resources. 6h. §§ 6. credit union.4 (Arson. § 20. if the resulting offense level is greater than that determined above.C.C. or § 1014. 1832. § 1342. or Receipt of Cultural Heritage Resources). 19 U.C.S.S. 662. Prohibited Transactions Involving Firearms or Ammunition). (B) the defendant was convicted under a statute proscribing false. If the offense involved a cultural heritage resource. 1037. § 78c(a)(11)). § 1001. 77x.

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

this guideline is the appropriate guideline for the offense the defendant was convicted of conspiring. Accordingly. Loss Under Subsection (b)(1).—For purposes of this guideline. harm to reputation.—In the cases described in subdivisions (I) through (III). "statutory maximum term of imprisonment" means the maximum term of imprisonment authorized for the offense of conviction. Pecuniary Harm. Solicitation. including any increase in that maximum term under a statutory enhancement provision. reasonably should have known. or other non-economic harm. pecuniary harm does not include emotional distress. or (ii) in the case of a conviction for conspiracy. the applicable base offense level is determined by the count of conviction that provides the highest statutory maximum term of imprisonment. corporations.§2B1. "reasonably foreseeable pecuniary harm" means pecuniary harm that the defendant knew or. soliciting. or an insurance fraud in which the claim exceeded the insured value). an offense is "referenced to this guideline" if (i) this guideline is the applicable Chapter Two guideline determined under the provisions of §1B1.—Subject to the exclusions in subdivision (D). Definition of "Statutory Maximum Term of Imprisonment".—This application note applies to the determination of loss under subsection (b)(1).1 (Attempt. or attempt to which §2X1.—In a case involving multiple counts sentenced under this guideline. and (II) includes intended pecuniary harm that would have been impossible or unlikely to occur (e. Application of Subsection (a)(1). as in a government sting operation.— (A) "Referenced to this Guideline". 2009 "Person" includes individuals. solicitation. Reasonably Foreseeable Pecuniary Harm. societies.—"Actual loss" means the reasonably foreseeable pecuniary harm that resulted from the offense. loss is the greater of actual loss or intended loss. and joint stock companies. (B) (C) 3.2 (Applicable Guidelines) for the offense of conviction. or Conspiracy) applies. (A) General Rule.g. reasonably foreseeable pecuniary harm shall be considered to include the pecuniary harm specified for those cases as follows: – 86 – (ii) (iii) (iv) (v) .—"Pecuniary harm" means harm that is monetary or that otherwise is readily measurable in money. was a potential result of the offense. or attempting to commit.—For purposes of this guideline. under the circumstances.—For purposes of subsection (a)(1). partnerships. 2.1 GUIDELINES M ANUAL November 1.. Base Offense Level Determination for Cases Involving Multiple Counts. associations. Intended Loss. (i) Actual Loss.—"Intended loss" (I) means the pecuniary harm that was intended to result from the offense. firms. companies. Rules of Construction in Certain Cases.

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

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

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

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

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

§ 1029(a)(8). locating the main office of the scheme in one jurisdiction but locating soliciting operations in another jurisdiction ordinarily indicates sophisticated means.S. Subsection (b)(8)(B) and (C). and (ii) includes a telecommunications instrument that has been modified or altered to obtain unauthorized use of telecommunications service. do not apply that adjustment under §3B1.— (A) Definition of United States. 2009 Non-Applicability of Chapter Three Adjustments.—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 §3C1.1. § 1029(a)(9).3.3 (Abuse of Position of Trust or Use of Special Skill). "Counterfeit access device" (i) has the meaning given that term in 18 U. or both.S.1 (Obstructing or Impeding the Administration of Justice).C. Application of Subsection (b)(10).— (A) Definitions. corporate shells. § 1029(e)(2). through the use of fictitious entities.1. Non-Applicability of Chapter Three Adjustment. the District of Columbia.C. and American Samoa. For example. the Commonwealth of Puerto Rico. "Scanning receiver" has the meaning given that term in 18 U. Conduct such as hiding assets or transactions. "Device-making equipment" (i) has the meaning given that term in 18 U.S.— (i) Subsection (b)(8)(A).S. "United States" means each of the 50 states.—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.C.1. do not apply that adjustment under §3C1. and (II) a scanning receiver referred to in 18 U.S. § 1029(e)(8). in a telemarketing scheme.S. do not apply that adjustment under §3C1. "sophisticated means" means especially complex or especially intricate offense conduct pertaining to the execution or concealment of an offense.§2B1.1 (E) GUIDELINES M ANUAL November 1. Sophisticated Means Enhancement under Subsection (b)(9). § 1028(d)(1). § 1029(e)(6). (ii) 8.—For purposes of subsection (b)(9)(B).—For purposes of subsection (b)(9)(C).C. Sophisticated Means Enhancement. Guam. and (ii) includes (I) any hardware or software that has been configured as described in 18 U. the Northern Mariana Islands.—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. or offshore financial accounts also ordinarily indicates sophisticated means. the United States Virgin Islands. – 92 – .—For purposes of subsection (b)(10): "Authentication feature" has the meaning given that term in 18 U.C. (B) (C) 9.C.

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

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

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

and the provisions of law referred to in section 3(a)(47) of the Securities Exchange Act of 1934 (15 U. regulations. Cross Reference in Subsection (c)(3).S. – 96 – .C. "Registered broker or dealer" has the meaning given that term in section 3(a)(48) of the Securities Exchange Act of 1934 (15 U. § 80b-2(a)(17)).3.—A conviction under a securities law or commodities law is not required in order for subsection (b)(17) to apply. and (ii) includes the rules. (B) In General. Sometimes.C. "Person associated with an investment adviser" has the meaning given that term in section 202(a)(17) of the Investment Advisers Act of 1940 (15 U.C. 1350. "Futures commission merchant" has the meaning given that term in section 1a(20) of the Commodity Exchange Act (7 U. do not apply §3B1.S.C. §§ 1348. "Investment adviser" has the meaning given that term in section 202(a)(11) of the Investment Advisers Act of 1940 (15 U.C.C. "Commodity trading advisor" has the meaning given that term in section 1a(6) of the Commodity Exchange Act (7 U. offenses involving fraudulent statements are prosecuted under 18 U. and orders issued by the Securities and Exchange Commission pursuant to the provisions of law referred to in such section. 2009 (ii) includes the rules.S. For example. 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.S.S.—If subsection (b)(17) applies.C. § 1001.1 GUIDELINES M ANUAL November 1. "Introducing broker" has the meaning given that term in section 1a(23) of the Commodity Exchange Act (7 U. 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.S.S. "Person associated with a broker or dealer" has the meaning given that term in section 3(a)(18) of the Securities Exchange Act of 1934 (15 U.3 (Abuse of Position of Trust or Use of Special Skill).S. § 78c(a)(48)). or a similarly general statute. § 1a(20)). Nonapplicability of §3B1. and the count of conviction establishes an offense involving fraudulent conduct that is more aptly covered by another guideline.C.S. "Commodity pool operator" has the meaning given that term in section 1a(5) of the Commodity Exchange Act (7 U. § 78c(a)(18)). "Securities law" (i) means 18 U. § 1a(23)). § 78c(a)(47)).§2B1. § 80b-2(a)(11)). § 1a(6)).S.C. even if the officer is convicted only of wire fraud.—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.S. and orders issued by the Commodity Futures Trading Commission. regulations. § 1a(5)). (C) 15.C.C.

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

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

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

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

November 1. November 1. amendments 699. 1988 (see Appendix C. §2B1. amendment 481). amendment 617). 1988 (see Appendix C. 1990 (see Appendix C. 2006 (see Appendix C.3 (Abuse of Position of Trust or Use of Special Skill) should be applied only if the defendant occupied and abused a position of special trust. Insider Trading (a) (b) Base Offense Level: 8 Specific Offense Characteristic (1) If the gain resulting from the offense exceeded $5.3. 2003 (see Appendix C. effective November 1.1 (Theft. amendment 714). Historical Note: Effective November 1. or Possessing Stolen Property). §2B1. 1997 (see Appendix C. November 1. 2009 (see Appendix C. 1989 (see Appendix C. 2001 (see Appendix C. November 1.3 (Property Damage or Destruction).4 have on national security. amendment 596). amendment 617). 1998 (see Appendix C. amendments 685 and 696). Application Note: 1. amendment 551). 1993 (see Appendix C. amendments 102-104). amendment 9). 2005 (see Appendix C. 2001 (see Appendix C. 2002 (see Appendix C. November 1.R. November 1. November 1. 1990 (see Appendix C.2. November 1. 1987. amendments 726. § 240. and 361). February 6. national public health or safety. 700.2 (Receiving. and 674). effective November 1. Transmitting. November 1. 1991 (see Appendix C. 1995 (see Appendix C. see Appendix A (Statutory Index). amendment 576). 1988 (see Appendix C. 1993 (see Appendix C. amendment 679). and 702). amendments 637. amendments 312. and November 1. amendments 364 and 393). 2004 (see Appendix C. amendments 312 and 313). amendments 481 and 482).—Section 3B1. amendments 665.1 effective November 1. 2008 (see Appendix C. Examples might include a corporate president or an attorney who misused information – 101 – .4. [Deleted] Historical Note: Section 2B1. amended effective January 15. 1987. Application of Subsection of §3B1. November 1. 2003 (see Appendix C. amendment 512).S. 2000 (see Appendix C. amendment 647). November 1. 1997 (see Appendix C. amendment 551). 2009 GUIDELINES MANUAL §2B1. § 78j and 17 C. or a combination of any of these matters. amended effective June 15. November 1. and 661). 1989 (see Appendix C. increase by the number of levels from the table in §2B1. 317. amendments 99-101 and 303). [Deleted] Historical Note: Section 2B1. 2008 (see Appendix C. 1988 (see Appendix C. amendment 8). and 737). 1998 (see Appendix C. January 25. November 1.November 1. Transferring. 655. 2007 (see Appendix C. was deleted by consolidation with §2B1. November 1. November 1. amendments 653. was deleted by consolidation with §2B1. amendments 719 and 725). and 646). 1990 (see Appendix C.F. November 1. 666. Transporting. November 1. November 1. amendment 7).3. amendments 312 and 361). and Fraud) corresponding to that amount.1 effective November 1.000. 638. §2B1. November 1. Amended effective June 15. 733. November 1. 654. For additional statutory provision(s). Property Destruction. 1987. June 15. Commentary Statutory Provisions: 15 U. amendment 10). November 1. national economic security.C. amendment 576).10b-5.

Purchase. Damage to. prior to the offense. (E) cultural property.C. increase by 2 levels. Exchange. (F) designated archaeological or ethnological material. increase by 2 levels. or (G) a pre-Columbian monumental or architectural sculpture or mural. is employed instead of the victims’ losses.4 GUIDELINES M ANUAL November 1. increase by 2 levels. e. Certain other offenses. Historical Note: Effective November 1. or (G) the World Heritage List. 2001 (see Appendix C. If the defendant engaged in a pattern of misconduct involving cultural heritage resources. increase by 2 levels.§2B1. the gain. (2) (3) (4) (5) – 102 – .S.1 (Theft. Unlawful Sale. (D) a sacred object.5.000. Background: This guideline applies to certain violations of Rule 10b-5 that are commonly referred to as "insider trading". (D) a national marine sanctuary. increase by 1 level. Cultural Heritage Resources.e. 7 U. § 13(e). and Fraud) corresponding to that amount. (E) a national cemetery or veterans’ memorial. (B) a National Historic Landmark..g. or (B) exceeded $5. Transportation. increase by the number of levels from the table in §2B1. or Destruction of. (B) a funerary object. 2009 regarding a planned but unannounced takeover attempt. i. (C) cultural patrimony. 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. in.000 but did not exceed $5. If the offense was committed for pecuniary gain or otherwise involved a commercial purpose. Property Destruction. If the offense involved a cultural heritage resource from. §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. If the offense involved a cultural heritage resource constituting (A) human remains. Because the victims and their losses are difficult if not impossible to identify. or that. that involve misuse of inside information for personal gain also appropriately may be covered by this guideline. or in the custody of (A) the national park system. Theft of. Insider trading is treated essentially as a sophisticated fraud. (F) a museum. amendment 617). It typically would not apply to an ordinary "tippee". was on. (C) a national monument or national memorial.000..

as defined in 16 U. 1163.S. 666. 2314-2315.4 (Arson. 7.—For purposes of subsection (b)(1). pt. 2232. pt. and 2604. 32 C. or destructive device. 18 C.S. "cultural heritage resource" means any of the following: (A) A historic property.C.C. § 10. §§ 470ee. 800).S. §§ 2601(2)(ii). increase by 2 levels.S. (B) (C) (D) (E) (F) (G) 2. explosive material. "Commemorative work" (A) has the meaning given that term in section 2(c) of Public Law 99–652 (40 U. "Cultural Heritage Resource" Defined. 668. 1152-1153. § 1002(c)). as defined in 16 U. If the resulting offense level is less than level 14.F. 668(a). and (B) includes any national monument or national memorial. pt. the value of the cultural heritage resource shall include. A commemorative work. 554.C.F.F.S.C. as defined in 18 U.C.R.R.November 1.C. as defined in 16 U. increase to level 14. Application Notes: 1.S. § 470w(5). 661-662.F. § 668(a)(2). A cultural item.—This application note applies to the determination of the value of the cultural heritage resource under subsection (b)(1). Designated ethnological material. § 3001(3) (see also 43 C. 1168.C.S. 1170.F. 1361. Commentary Statutory Provisions: 16 U.2(d)).R. § 470w(5) (see also section 16(l) of 36 C.R. 2009 GUIDELINES MANUAL §2B1. 296. 641. 36 C. (A) General Rule. 25 U.—For purposes of this guideline. or property damage by the use of any explosive. if the resulting offense level is greater than that determined above. Value of the Cultural Heritage Resource Under Subsection (b)(1). as applicable to the particular resource involved. 18 U. the following: – 103 – . (c) Cross Reference (1) If the offense involved arson.F.C. 707(b). §§ 541-546.C.S. pt. An object of cultural heritage. 299.R. § 470bb(1) (see also section 3(a) of 43 C. 2601(7). as described in 19 U. A historic resource. Property Damage by Use of Explosives). apply §2K1. 1312).R. An archaeological resource.5 (6) If a dangerous weapon was brandished or its use was threatened. 1369. as defined in section 2(3) of the Native American Graves Protection and Repatriation Act. pt.S.

the court need only make a reasonable estimate of the value of the cultural heritage resource based on available information. and (VI) preparation of reports. 32 C. Definitions.) "Commercial value" of a cultural heritage resource means the fair market value of the cultural heritage resource at the time of the offense. (Archaeological value shall be included in the case of any cultural heritage resource that is an archaeological resource. 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. conducting field work. 18 C.R.) "Cost of restoration and repair" includes all actual and projected costs of curation.R. 18 C.R.—In a case involving a variety of cultural heritage resources. 36 C.R.R. (III) research necessary to conduct reconstruction and stabilization. conducting laboratory analysis. § 229. § 668(a)(1) except that the museum may be situated outside the United States. 32 C.§2B1.R. § 229.14(b). (ii) (iii) (B) Estimation of Value.—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. § 229.F.F. 18 C. including (I) its reconstruction and stabilization. § 296. § 1312. § 296.) The commercial value. 3. (See 43 C.—For purposes of subsection (b)(2): (A) "Museum" has the meaning given that term in 18 U.14(c).S. and consultation with respect to. (V) examination and analysis of the cultural heritage resource as part of efforts to salvage remaining information about the resource. § 1312. § 7. § 7.F.14(a). (IV) the construction of physical barriers and other protective devices. § 7. § 1312.14(b).F. the cultural heritage resource. disposition. and appropriate reburial of. 36 C. (See 43 C. § 296.F.—For purposes of subsection (b)(1).R.14(c).14(a). 36 C.F.F.R.R. as would be necessary to realize the information potential.R.F.14(a). The cost of restoration and repair. including the cost of preparing a research design. 32 C.C. 2009 The archaeological value.5 (i) GUIDELINES M ANUAL November 1.R.) (C) (ii) (iii) (D) Determination of Value in Cases Involving a Variety of Cultural Heritage Resources. (II) reconstruction and stabilization of ground contour and surface.14(c). Enhancement in Subsection (b)(2).14(b). – 104 – .F.14(a).R.F. (See 43 C.F.14(c).14(b).F. and preparing reports.

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

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

Historical Note: Effective November 1.S.— (A) In General. or use of a means of identification when determining the sentence for the underlying offense. 2007 (see Appendix C. 2009 GUIDELINES MANUAL §2B1.C. See the Commentary to §5G1. in whole or in part.S. do not apply any specific offense characteristic for the transfer.S. § 1028(d)(7). in the discretion of the court. with each other. Accordingly.—Do not apply Chapters Three (Adjustments) and Four (Criminal History and Criminal Livelihood) to any offense sentenced under this 3.6 involved a cultural heritage resource that has profound significance to cultural identity (e. § 1028A.C.November 1. the guideline sentence for a defendant convicted under 18 U. § 1028A. amendment 685). Application Notes: 1. "Means of identification" has the meaning given that term in 18 U. Inapplicability of Chapters Three and Four. provides a mandatory term of imprisonment. 2002 (see Appendix C. § 1028A also requires a term of imprisonment imposed under this section to run consecutively to any other term of imprisonment. Except as provided in subdivision (B). United State Code.—Section 1028A of title 18.g. For additional statutory provision(s). Commentary Statutory Provision: 18 U.—If a sentence under this guideline is imposed in conjunction with a sentence for an underlying offense. § 1028A is the term required by that statute..3 (Relevant Conduct). 18 U.S.C.C. run concurrently. – 107 – . 2006 (see Appendix C.6. the terms of imprisonment imposed on such counts may. including any such enhancement that would apply based on conduct for which the defendant is accountable under §1B1. Amended effective November 1. A sentence under this guideline accounts for this factor for the underlying offense of conviction.S.—Section 1028A(b)(4) of title 18. Aggravated Identity Theft (a) If the defendant was convicted of violating 18 U.C. § 1028A. Chapters Three (Adjustments) and Four (Criminal History and Criminal Livelihood) shall not apply to that count of conviction. amendment 638).2 (Sentencing on Multiple Counts of Conviction) for guidance regarding imposition of sentence on multiple counts of 18 U. § 1028A. §2B1. amendment 700). see Appendix A (Statutory Index). provides that in the case of multiple convictions under 18 U. United State Code. (B) 2. November 1. possession.C.C. the Statue of Liberty or the Liberty Bell).S. Imposition of Sentence. Multiple Convictions Under Section 1028A. Inapplicability of Chapter Two Enhancement. the guideline sentence is the term of imprisonment required by statute.S.

Burglary of a Residence or a Structure Other than a Residence (a) Base Offense Level: (1) (2) (b) 17.000 More than $1.000 More than $250. increase by 2 levels. increase by 2 levels.1. if a structure other than a residence.2. If a firearm. (4) Commentary – 108 – . * * * * * 2. 2005 (see Appendix C.000 More than $50.§2B1.000 Increase in Level no increase add 1 add 2 add 3 add 4 add 5 add 6 add 7 add 8. or if the taking of such item was an object of the offense.000 More than $5. See §§3D1.000.000 More than $2. increase by 1 level. If a dangerous weapon (including a firearm) was possessed.500. If the loss exceeded $2. destructive device.500 or less More than $2. 2009 guideline.500 More than $10. amendment 677).500.1 (Procedure for Determining Offense Level on Multiple Counts) and 5G1. increase the offense level as follows: Loss (Apply the Greatest) (A) (B) (C) (D) (E) (F) (G) (H) (I) (3) $2. BURGLARY AND TRESPASS §2B2. Specific Offense Characteristics (1) (2) If the offense involved more than minimal planning.000 More than $800. Such offenses are excluded from application of those chapters because the guideline sentence for each offense is determined only by the relevant statute.500. if a residence. or controlled substance was taken. Historical Note: Effective November 1.6 GUIDELINES M ANUAL November 1. or 12.

2117. 1990 (see Appendix C. (E) at a residence. 1993 (see Appendix C. By contrast. November 1. More than Minimal Planning. damaged. 1993 (see Appendix C. For additional statutory provision(s). (D) in a secure area of an airport or a seaport. was deleted by consolidation with §2B2. Weapon use would be a ground for upward departure. 4. 3.—"More than minimal planning" means more planning than is typical for commission of the offense in a simple form.2 (Burglary of Other Structures). amendment 12). Subsection (b)(4) does not apply to possession of a dangerous weapon (including a firearm) that was stolen during the course of the offense.S. §2B2. §2B2. 1989 (see Appendix C. 1988 (see Appendix C. and November 1. 1990 (see Appendix C. is a specific offense characteristic because use of a weapon (including to threaten) ordinarily would make the offense robbery. amendments 105 and 106). or disabling an alarm system.1 effective November 1. would constitute more than minimal planning. unless it is clear that each instance was purely opportune.C.3. 1989 (see Appendix C. obtaining building plans to plot a particular course of entry. November 1. (F) at – 109 – . 2115.November 1. "More than minimal planning" also exists if significant affirmative steps were taken to conceal the offense. 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. "Firearm.1 (Application Instructions). §§ 1153. "More than minimal planning" shall be considered to be present in any case involving repeated acts over a period of time. but not use. 1988 (see Appendix C. Amended effective January 15. effective November 1. or destroyed. amendments 315 and 361). 2. 1987. Weapon possession. 2001 (see Appendix C. 1987. Historical Note: Effective November 1. (B) at a nuclear energy facility. November 1. 2009 GUIDELINES MANUAL §2B2. amendment 481). November 1. For example. 2113(a). amendments 315 and 361). November 1. amendment 13). amendment 481). June 15.2. (C) on a vessel or aircraft of the United States." and "dangerous weapon" are defined in the Commentary to §1B1.1 (Obstructing or Impeding the Administration of Justice) applies. amended effective June 15. see Appendix A (Statutory Index).3 Statutory Provisions: 18 U. "Loss" means the value of the property taken. checking the area to make sure no witnesses were present would not alone constitute more than minimal planning. Trespass (a) (b) Base Offense Level: 4 Specific Offense Characteristics (1) If the trespass occurred (A) at a secure government facility. amendment 11)." "destructive device. Application Notes: 1. amendment 107). amendment 617). 2118(b). [Deleted] Historical Note: Section 2B2. other than conduct to which §3C1. 1988 (see Appendix C.

1 (Attempt. Commentary Statutory Provisions: 18 U. For additional statutory provision(s). see Appendix A (Statutory Index). mass transit.§2B2. emergency services (including medical. or local) punishable by imprisonment for a term exceeding one year. or (ii) exceeded $5. § 2413.C. or Conspiracy) in respect to that felony offense. increase by 2 levels. water supply systems. A critical infrastructure may be publicly or privately owned. storage. 38 U.C. or any combination of those matters. 2199. and rescue services). Examples of critical infrastructures include gas and oil production. or (ii) by or for a government entity in furtherance of the administration of justice. Property Destruction. United States Code. 42 U. and airports). §§ 1030(a)(3). 1036.1 (Theft. public health or safety. "Firearm" and "dangerous weapon" are defined in the Commentary to §1B1. whether or not a criminal charge was brought or a conviction was obtained. increase by the number of levels from the table in §2B1.S.000. telecommunications networks.000. (2) If a dangerous weapon (including a firearm) was possessed. national defense.3 GUIDELINES M ANUAL November 1. § 7270b. economic security. Definitions. "Critical infrastructure" means systems and assets vital to national defense. increase by 1 level. fire. (3) (c) Cross Reference (1) If the offense was committed with the intent to commit a felony offense.S. 2009 Arlington National Cemetery or a cemetery under the control of the National Cemetery Administration. and (B) the loss resulting from the invasion (i) exceeded $2. police. Solicitation. or national security. and delivery systems.—For purposes of this guideline: "Airport" has the meaning given that term in section 47102 of title 49. and Fraud) corresponding to that amount. state.1 (Application Instructions). Application Notes: 1. national security.S. if the resulting offense level is greater than that determined above. airlines. If (A) the offense involved invasion of a protected computer.C. electrical power delivery systems. – 110 – . transportation systems and services (including highways. apply §2X1. financing and banking systems. increase by 2 levels. and government operations that provide essential services to the public. or (G) on a computer system used (i) to maintain or operate a critical infrastructure.000 but did not exceed $5. "Felony offense" means any offense (federal.

November 1. Amended effective November 1. 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. or (F) if a threat of death was made. November 1. amendment 617). AND BLACKMAIL §2B3. 1987.C. November 1. Background: Most trespasses punishable under federal law involve federal lands or property. increase by 4 levels. Historical Note: Effective November 1.1 (Theft. (C) if a firearm was brandished or possessed. EXTORTION. 2002 (see Appendix C. increase by 3 levels. Additionally. increase by 7 levels. 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 .C. 2007 (see Appendix C. November 1. "Protected computer" means a computer described in 18 U. 2003 (see Appendix C. amendments 699 and 703). amendments 108 and 109). and Fraud). November 1. 2. 1989 (see Appendix C.S. Robbery (a) (b) Base Offense Level: 20 Specific Offense Characteristics (1) If the property of a financial institution or post office was taken. § 26. 2009 GUIDELINES MANUAL §2B3. (B) if a firearm was otherwise used. increase by 2 levels. amendment 551). (E) if a dangerous weapon was brandished or possessed. § 1030(e)(2)(A) or (B).C. amendment 654).1. an enhancement is provided for trespass at a residence. or if the taking of such property was an object of the offense. (A) If a firearm was discharged. increase by 6 levels. amendment 637). If any victim sustained bodily injury.November 1.S. § 1030(e)(9). ROBBERY. increase by 5 levels. 1997 (see Appendix C.S. increase by 2 levels. (D) if a dangerous weapon was otherwise used. Valuation of loss is discussed in the Commentary to §2B1. "Seaport" has the meaning given that term in 18 U. * * * * * 3. 2001 (see Appendix C. Property Destruction.1 "Government entity" has the meaning given that term in 18 U.

add 3 levels. or If the degree of injury is between that specified in subdivisions (B) and (C).000 More than $50. destructive device. increase the offense level as follows: Loss (Apply the Greatest) (A) (B) (C) (D) (E) (F) (G) (H) (c) $10. If the loss exceeded $10. see Appendix A (Statutory Index).1 (First Degree Murder). or (B) if any person was physically restrained to facilitate commission of the offense or to facilitate escape. §§ 1951. (E) Provided. If a firearm.000. add 5 levels. increase by 4 levels. 2009 Permanent or Life-Threatening Bodily Injury add 6 If the degree of injury is between that specified in subdivisions (A) and (B).000 or less More than $10.1 (C) (D) GUIDELINES M ANUAL November 1. 2114.S. Commentary Statutory Provisions: 18 U. For additional statutory provision(s). increase by 1 level. (4) (A) If any person was abducted to facilitate commission of the offense or to facilitate escape. increase by 2 levels. or controlled substance was taken.000 More than $5. (5) (6) (7) Cross Reference (1) If a victim was killed under circumstances that would constitute murder under 18 U. – 112 – . increase by 2 levels.C.§2B3. however. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States.000. If the offense involved carjacking. 2113.500. apply §2A1.S.000 More than $1. 2118(a). or if the taking of such item was an object of the offense.C.000 Increase in Level no increase add 1 add 2 add 3 add 4 add 5 add 6 add 7.500.000 More than $2.000 More than $800. that the cumulative adjustments from (2) and (3) shall not exceed 11 levels.000 More than $250. 2119.

1 Application Notes: 1.1 (Assault with Intent to Commit Murder.g. physical injury.1 (Application Instructions). who is a victim of the offense." as used in subsection (b)(2)(F). – 113 – . "Give me the money or I will shoot you". "A threat of death. an oral or written demand using words such as "Give me the money or I will kill you"." "serious bodily injury. "Give me your money or else (where the defendant draws his hand across his throat in a slashing motion)". or destroyed. "Firearm. the defendant does not have to state expressly his intent to kill the victim in order for the enhancement to apply. Moreover. damaged. or "Give me the money or you are dead" would constitute a threat of death. The guideline provides for a range of enhancements where these factors are present. Consistent with Application Note 1(d)(ii) of §1B1. Attempted Murder). 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. because of the relatively high base offense level for robbery. 6. may be in the form of an oral or written statement. If the defendant intended to murder the victim. gesture." "bodily injury. Accordingly. 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. Although in pre-guidelines practice the amount of money taken in robbery cases affected sentence length. 2009 GUIDELINES MANUAL §2B3. a fear of death." "destructive device. 5. 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.1 (Application Instructions). an upward departure may be warranted. 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." "dangerous weapon. or combination thereof. the gradations for property loss increase more slowly than for simple property offenses. see §2A2. and unlawful restraint sometimes occur during a robbery. its importance was small compared to that of the other harm involved." "otherwise used." "permanent or life-threatening bodily injury. The combined adjustments for weapon involvement and injury are limited to a maximum enhancement of 11 levels. "Give me the money or I will pull the pin on the grenade I have in my pocket". "Loss" means the value of the property taken. Accordingly.. a defendant wrapped a hand in a towel during a bank robbery to create the appearance of a gun). 4.November 1. act. 3. "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." "brandished." "abducted. 2. Background: Possession or use of a weapon. For example.

national defense. amendment 617). amendment 365). bodily injury. 1987. bound. (4) If any victim sustained bodily injury. increase by 6 levels. Historical Note: Effective November 1. November 1.2. increase by 3 levels. November 1. or (v) if a dangerous weapon was brandished or possessed. or was physically restrained by being tied.1(b)(7). amendments 14 and 15). increase by 7 levels. or kidnapping. or by or for a government entity in furtherance of the administration of justice. or – 114 – . (iii) if a firearm was brandished or possessed. (III) kidnapping. 1990 (see Appendix C. or (B) If (i) the offense involved preparation to carry out a threat of (I) death. 1989 (see Appendix C. (IV) product tampering. §2B3. (ii) if a firearm was otherwise used. amendments 314. or locked up. add 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 (V) damage to a computer system used to maintain or operate a critical infrastructure. (iv) if a dangerous weapon was otherwise used. 1997 (see Appendix C. (A)(i) If a firearm was discharged. November 1. amendments 545 and 552). or (ii) the participant(s) otherwise demonstrated the ability to carry out a threat described in any of subdivisions (i)(I) through (i)(V).1 GUIDELINES M ANUAL November 1. 2009 The guideline provides an enhancement for robberies where a victim was forced to accompany the defendant to another location. 1988 (see Appendix C.000. 1991 (see Appendix C. (II) serious bodily injury. If the greater of the amount demanded or the loss to the victim exceeded $10. and 361). 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. 315. amendment 601). increase by 5 levels. 1993 (see Appendix C. amendment 483). increase by 2 levels. or national security. amendments 110 and 111). 2001 (see Appendix C. November 1. November 1.§2B3. November 1. November 1. increase by 3 levels. increase by 4 levels. 2000 (see Appendix C. increase by the corresponding number of levels from the table in §2B3. Amended effective June 15.

increase by 2 levels. however. airlines. that the cumulative adjustments from (3) and (4) shall not exceed 11 levels." "bodily injury." "physically restrained.—For purposes of this guideline: "Abducted. fire." "dangerous weapon.1 (Assault with Intent to Commit Murder. see Appendix A (Statutory Index). or (B) if any person was physically restrained to facilitate commission of the offense or to facilitate escape.S." "permanent or life-threatening bodily injury." "firearm. Provided. – 115 – . and government operations that provide essential services to the public.1 (First Degree Murder).C. electrical power delivery systems. or any combination of those matters. water supply systems.S.1 (Application Instructions). (5) (A) If any person was abducted to facilitate commission of the offense or to facilitate escape. storage. financing and banking systems. apply §2A1. police. 877. 1951." "otherwise used.C. and delivery systems. § 1030(e)(9). add 5 levels. 2009 GUIDELINES MANUAL §2B3." "brandished. Application Notes: 1. "Government entity" has the meaning given that term in 18 U.November 1. "Critical infrastructure" means systems and assets vital to national defense. Attempted Murder) if the resulting offense level is greater than that determined above. If the offense was tantamount to attempted murder. §§ 875(b). and airports)." and "serious bodily injury" have the meaning given those terms in Application Note 1 of the Commentary to §1B1. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States. emergency services (including medical. increase by 4 levels.S. economic security. For additional statutory provision(s). Examples of critical infrastructures include gas and oil production. (2) Commentary Statutory Provisions: 18 U.C. and rescue services). mass transit. transportation systems and services (including highways. A critical infrastructure may be publicly or privately owned. apply §2A2. public health or safety. Definitions. telecommunications networks. (c) Cross References (1) If a victim was killed under circumstances that would constitute murder under 18 U. national security. 876.2 (E) If the degree of injury is between that specified in subdivisions (B) and (C). 1030(a)(7).

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

increase by 1 level. increase by the number of levels from the table in §2B1. Extortionate threats to injure a reputation. apply §2B3. "Blackmail" (18 U. may also be prosecuted under 18 U. Background: Under 18 U. 2009 GUIDELINES MANUAL §2B3. November 1. amendment 617). the maximum term of imprisonment authorized for blackmail is one year.S. For additional statutory provision(s). * * * * * – 117 – . Extortion Under Color of Official Right.1 (Theft.000.C. 2005 (see Appendix C. amendment 114). apply §2C1.C. §§ 873.2. Giving. amendment 479).000 but did not exceed $5. or Receiving a Bribe. § 873) is defined as a threat to disclose a violation of United States law unless money or some other item of value is given.S. Amended effective November 1. 1989 (see Appendix C. 2001 (see Appendix C.S. 875-877.S. Commentary (2) Statutory Provisions: 18 U.000. § 873. November 1. Soliciting. Property Destruction. Conspiracy to Defraud by Interference with Governmental Functions). or (B) exceeded $5. §§ 875-877.3 §2B3. Application Note: 1. 1993 (see Appendix C. amendment 679). This section applies only to blackmail and similar forms of extortion where there clearly is no threat of violence to person or property. Historical Note: Effective November 1. see Appendix A (Statutory Index).2 (Extortion by Force or Threat of Injury or Serious Damage).November 1.3.C.1 (Offering. 1987. which carry higher maximum sentences.C. If the offense involved extortion by force or threat of injury or serious damage. Fraud Involving the Deprivation of the Intangible Right to Honest Services of Public Officials. (c) Cross References (1) If the offense involved extortion under color of official right. and Fraud) corresponding to that amount. 1951. 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. November 1. or other threats that are less serious than those covered by §2B3.

42 U.C.§2B4.000. §§ 9012(e).S. 224.C. (2). (2) (B) If the resulting offense level determined under subdivision (A) or (B) is less than level 24. 2009 COMMERCIAL BRIBERY AND KICKBACKS §2B4.S. increase to level 24. foreign governments. 49 U. or local government. See Part C. see Appendix A (Statutory Index).S. (Apply the greater) If— (A) the defendant derived more than $1.4 (Base Fine). 41 U.000 in gross receipts from one or more financial institutions as a result of the offense.000. if any such officials are involved. or (B) exceeded $5. 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. or (C) the consequential damages resulting from the unlawful payment. For additional statutory provision(s). increase by 2 levels.C.000 but did not exceed $5.1 4. Commentary Statutory Provisions: 18 U. §§ 215. – 118 – . (c) Special Instruction for Fines . 9042(d).S. and Fraud) corresponding to that amount.000. 54. §§ 53.C. increase by the number of levels from the table in §2B1.C.1.(2). increase by 4 levels. 225. increase by 1 level. Property Destruction. Offenses Involving Public Officials. This guideline covers commercial bribery offenses and kickbacks that do not involve officials of federal. Application Notes: 1. 1396h(b)(1). § 11902.Organizations (1) In lieu of the pecuniary loss under subsection (a)(3) of §8C2. §§ 1395nn(b)(1). or the offense substantially jeopardized the safety and soundness of a financial institution. GUIDELINES M ANUAL November 1.1 (Theft. or public international organizations. 26 U. 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.S. state.

mutual fund. payment.C.." as used in this guideline. Enhancement for Substantially Jeopardizing the Safety and Soundness of a Financial Institution under Subsection (b)(2)(B). 657. "Financial institution. trust company.S. savings (building and loan) association.1 (Offering. Background: This guideline applies to violations of various federal bribery statutes that do not involve governmental officials. § 225 (relating to a continuing financial crimes enterprise). 2009 GUIDELINES MANUAL §2B4. an offense shall be considered to have substantially jeopardized the safety and soundness of a financial institution if. If the defendant is convicted under 18 U. insurance company.—"Gross receipts from the offense" includes all property. investment company. (B) substantially reduced benefits to pensioners or insureds. or (E) was placed in substantial jeopardy of any of subdivisions (A) through (D) of this note. and associations that undertake to provide pension. exceeded $1. (B) 5.1 2. the offense level is that applicable to the underlying series of offenses comprising the "continuing financial crimes enterprise. or Receiving a Bribe.— (A) In General. (C) was unable on demand to refund fully any deposit. § 982(a)(4). tangible or intangible. or hospital insurance association. real or personal. as a consequence of the offense. the institution (A) became insolvent.g.. §§ 20. and 1014. with the Securities and Exchange Commission.C. 3. 656. 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. whether or not insured by the federal government. See Commentary to §2C1. primarily include large pension funds that serve many individuals (e.November 1. and any similar entity.000. or other benefits (e. "Union or employee pension fund" and "any health.000. 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. See 18 U. Soliciting. with the Commodity Futures Trading Commission.g. rather than to all participants. union or employee pension fund.S. – 119 – .S. Conspiracy to Defraud by Interference with Governmental Functions). brokers and dealers registered. unions. disability.C. is defined to include any institution described in 18 U.000. pension funds of large national and international organizations. Extortion Under Color of Official Right. Fraud Involving the Deprivation of the Intangible Right to Honest Services of Public Officials. or required to be registered.000 in gross receipts if the gross receipts to the defendant individually. or required to be registered. Definition. medical or hospitalization insurance) to large numbers of persons. which is obtained directly or indirectly as a result of such offense. 1005-1007. credit union. any state or foreign bank. Giving. the defendant shall be considered to have derived more than $1. whichever is greater. any health.—For purposes of subsection (b)(2)(A). (D) was so depleted of its assets as to be forced to merge with another institution in order to continue active operations. 4. Gross Receipts Enhancement under Subsection (b)(2)(A).—For purposes of subsection (b)(2)(B). medical or hospital insurance association." as used above. and corporations doing substantial interstate business). futures commodity merchants and commodity pool operators registered." 6. or investment. medical.

Amended effective November 1.S. if a bank officer agreed to the offer of a $25. November 1. §§ 1396h(b)(1) and (b)(2) cover the offer or acceptance of a payment for referral to the Medicaid program. amendment 468). Similar provisions in 42 U. 41 U.S.000 loan under terms for which the applicant would not otherwise qualify.§2B4.S. This guideline also applies to violations of law involving bribes and kickbacks in expenses incurred for a presidential nominating convention or presidential election campaign. 1990 (see Appendix C. Subsection (b)(2)(A) implements. § 224. Thus.C.C.C. November 1.1 GUIDELINES M ANUAL November 1. amendment 553). 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. These offenses are prohibited under 26 U. § 215. amendment 666). 2004 (see Appendix C. for example. would use the greater of the $25. the amount of the bribe would be used to determine the appropriate increase in offense level. 2002 (see Appendix C. 53-54. amendment 317). as well as certain violations of the Interstate Commerce Act. 1997 (see Appendix C. sports bribery. amendments 639 and 646). involve the offer or acceptance of a payment to refer an individual for services or items paid for under the Medicare program. 2001 (see Appendix C. 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. * * * * * – 120 – . Violations of 42 U. in a broader form. this guideline considers not only the amount of the bribe but also the value of the action received in return. If that amount could not be estimated. This guideline also applies to violations of 18 U.S. the court.000 to shave points in a nationally televised basketball game. November 1. §§ 9012(e) and 9042(d). If a gambler paid a player $5.000 bribe to approve a $250. amendment 617). which apply to candidates for President and Vice President whose campaigns are eligible for federal matching funds. 1991 (see Appendix C. 1987. and the savings in interest over the life of the loan compared with alternative loan terms. the value of the action to the gambler would be the amount that he and his confederates won or stood to gain.C. November 1. §§ 1395nn(b)(1) and (b)(2). Historical Note: Effective November 1.000 bribe.C.S. 1992 (see Appendix C. As with non-commercial bribery.S. in increasing the offense level. §§ 51. November 1. Subsection (b)(2)(B) implements the instruction to the Commission in section 2507 of Public Law 101-647. the instruction to the Commission in section 961(m) of Public Law 101-73. amendments 364 and 422).C. November 1.

§§ 470-474A.000. 500.000. Application Notes: 1. – 121 – . If the defendant (A) manufactured or produced any counterfeit obligation or security of the United States. If any part of the offense was committed outside the United States. 1003. increase to level 13.—For purposes of this guideline: "Counterfeit" refers to an instrument that has been falsely made. For additional statutory provision(s). 1987. increase by 1 level. (ii) genuine United States currency paper from which the ink or other distinctive counterfeit deterrent has been completely or partially removed. COUNTERFEITING AND INFRINGEMENT OF COPYRIGHT OR TRADEMARK Historical Note: Effective November 1. For example. and Fraud) corresponding to that amount. If a dangerous weapon (including a firearm) was possessed in connection with the offense. or possessed or had custody of or control over a counterfeiting device or materials used for counterfeiting. or altered. 476. 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). increase by the number of levels from the table in §2B1. increase by 2 levels. increase by 2 levels. 477. If subsection (b)(2)(A) applies.S. Definitions.1 5. manufactured.000 but did not exceed $5. see Appendix A (Statutory Index). If the resulting offense level is less than level 13. increase by 2 levels. an instrument that has been falsely made or manufactured in its entirety is "counterfeit". Property Destruction. §2B5. and the offense level determined under that subsection is less than level 15. Amended effective November 1. 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 $2.1 (Theft.C. increase to level 15.1.November 1. amendment 481). or (B) controlled or possessed (i) counterfeiting paper similar to a distinctive paper. 2009 GUIDELINES MANUAL §2B5. or (iii) a feature or device essentially identical to a distinctive counterfeit deterrent. 1993 (see Appendix C. or (B) exceeded $5. 501. (2) (3) (4) (5) Commentary Statutory Provisions: 18 U.

increase by the number of levels from the table in §2B1. amendment 115). November 1. the Northern Mariana Islands. 2. respectively. [Deleted] Historical Note: Section 2B5. amendment 731). – 122 – . 1987. the District of Columbia. 1989 (see Appendix C. 1993 (see Appendix C. Amended effective January 15. 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. Property Destruction. the Commonwealth of Puerto Rico. November 1. 1998 (see Appendix C. Criminal Infringement of Copyright or Trademark (a) (b) Base Offense Level: 8 Specific Offense Characteristics (1) If the infringement amount (A) exceeded $2. November 1. or (B) exceeded $5..3. 1997 (see Appendix C. 2000 (see Appendix C. the counterfeit items.S. was deleted by consolidation with §2F1.—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. § 474A(c)(2) and (1). and Fraud) corresponding to that amount. §2B5. 1995 (see Appendix C.e. amendment 116).1 effective November 1.— This guideline applies to counterfeiting of United States currency and coins. November 1.2 (Forgery.000.C. effective November 1. 2009 (see Appendix C. the instruction to the Commission in section 110512 of Public Law 103-322. amendments 617 and 618). bearer bonds and other items that generally could be described as bearer obligations of the United States. "United States" means each of the fifty states. amendments 595 and 605).000. Applicability to Counterfeit Bearer Obligations of the United States. 1988 (see Appendix C. amendment 17) and November 1. amendment 587). Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States). amendment 16). 1989 (see Appendix C. i. amendment 513). Guam.1 (Theft. the United States Virgin Islands. rather than merely passes. Inapplicability to Certain Obviously Counterfeit Items. treasury bills. Historical Note: Effective November 1. amended effective January 15. 3. 1987.2. and American Samoa. Similarly.000 but did not exceed $5. postage stamps. 2001 (see Appendix C. an enhancement is provided for a defendant who produces.§2B5. November 1. that are not made out to a specific payee.1 GUIDELINES M ANUAL November 1. November 1. amendment 481). amendment 554). November 1. 2009 "Distinctive counterfeit deterrent" and "distinctive paper" have the meaning given those terms in 18 U. Subsection (b)(4) implements. 1988 (see Appendix C. increase by 1 level. in a broader form. food stamps.

§§ 506(a).C. including by storing the infringing item as an openly shared file. or (B) possession of a dangerous weapon (including a firearm) in connection with the offense.S. increase by 2 levels. including other protected works. "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. importation. For additional statutory provision(s). but the resulting offense level shall be not less than level 8. or (B) have access to the infringing item.C. "Infringed item" means the copyrighted or trademarked item with respect to which the crime against intellectual property was committed. publication. §§ 2318-2320. or (B) defendant was convicted under 17 U. 2009 GUIDELINES MANUAL §2B5. (3) (4) (5) Commentary Statutory Provisions: 17 U. increase by 2 levels. – 123 – .C.S. increase to level 14.3 (2) If the offense involved the display. Application Notes: 1. or expectation of receipt. "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. increase by 2 levels. 2511. If the offense was not committed for commercial advantage or private financial gain.November 1. "Infringing item" means the item that violates the copyright or trademark laws.—For purposes of this guideline: "Circumvention devices" are devices used to perform the activity described in 17 U. If the resulting offense level is less than level 14.S. reproduction. If the resulting offense level is less than level 12. or distribution of a work being prepared for commercial distribution. "Commercial advantage or private financial gain" means the receipt. or uploading of infringing items.C. see Appendix A (Statutory Index). Definitions. §§ 1201(a)(3)(A) and 1201(b)(2)(A). § 506(a)(3).C. of anything of value. §§ 1201 and 1204 for trafficking in circumvention devices.S. 1204. decrease by 2 levels. 18 U.S. "Work being prepared for commercial distribution" has the meaning given that term in 17 U. If the (A) offense involved the manufacture. If the offense involved (A) the conscious or reckless risk of death or serious bodily injury. 1201. performance. increase to level 12.

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

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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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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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GUIDELINES MANUAL

§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

GUIDELINES M ANUAL

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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November 1, 2009

GUIDELINES MANUAL

§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

GUIDELINES M ANUAL

November 1, 2009

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)

November 1, 2009

GUIDELINES MANUAL

§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

GUIDELINES M ANUAL

November 1, 2009

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

§2C1.2.

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

Specific Offense Characteristics (1) (2) If the offense involved more than one gratuity, increase by 2 levels. If the value of the gratuity exceeded $5,000, increase by the number of levels from the table in §2B1.1 (Theft, Property Destruction, and Fraud) corresponding to that amount.
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November 1, 2009

GUIDELINES MANUAL

§2C1.2

(3)

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

(4)

(c)

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

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

(D)

(E)

§2C1.2

GUIDELINES M ANUAL

November 1, 2009

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

3.

(B)

4.

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

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

§2C1.3.

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

(c)

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

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November 1, 2009

GUIDELINES MANUAL

§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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6 §2C1. §2C1. Receiving. or receipt of governmental funds. increase by the number of levels from the table in §2B1. [Deleted] Historical Note: Effective November 1. solicitation. 2004 (see Appendix C.1 (Theft. (4) (5) (c) Cross Reference (1) If the offense involved a bribe or gratuity. (2) If (A) the offense involved the contribution. or expenditure made or obtained through intimidation. donation.6. or Failing to Report a Contribution. increase by 2 levels. If the defendant engaged in 30 or more illegal transactions. disbursement. or Expenditure in Violation of the Federal Election Campaign Act. 2003 (see Appendix C. was deleted by consolidation with §2C1. Property Destruction. threat of pecuniary or other harm. increase by 4 levels. November 1. amendment 547). §2C1. Donation. solicitation.§2C1. apply §2C1. Amended effective November 1. or a government of a foreign country. and Fraud) corresponding to that amount.7. directly or indirectly. amendment 653). Making. amendment 617).2 effective November 1. (Apply the greater) If the offense involved. or Receiving a Bribe. amendment 617). Fraudulently Misrepresenting Campaign Authority. [Deleted] GUIDELINES M ANUAL November 1.1 (Offering. 1987. November 1. 1991 (see Appendix C. 2009 Historical Note: Effective November 1. increase by 4 levels. 1997 (see Appendix C. expenditure. an illegal transaction made by or received from— (A) (B) (3) a foreign national.1 effective November 1. 2001 (see Appendix C. Amended effective November 1. 1992 (see Appendix C.000. increase by 2 levels. Giving. donation. identifiable non-monetary Federal benefit. or (B) the defendant committed the offense for the purpose of obtaining a specific. or coercion. Extortion Under Color of – 136 – . 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 $5.8. amendment 468). If the offense involved a contribution. was deleted by consolidation with §2C1. Soliciting. increase by 2 levels. 2001 (see Appendix C. amendment 666). amendment 368). amendment 666). November 1. 2004 (see Appendix C.

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

2003 (see Appendix C. 2003 (see Appendix C. or office that may cause loss of public confidence in government. amendment 679). GUIDELINES M ANUAL November 1.8 3. amendment 648). November 1. process. Departure Provision.—Subsection (b)(4) shall apply if the defendant engaged in any combination of 30 or more illegal transactions during the course of the offense.—In a case in which the defendant’s conduct was part of a systematic or pervasive corruption of a governmental function. – 138 – . whether or not the illegal transactions resulted in a conviction for such conduct. amendment 656). Amended effective November 1. 2009 Application of Subsection (b)(4).§2C1. Historical Note: Effective January 25. an upward departure may be warranted. 4. 2005 (see Appendix C.

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

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

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

or at least 1 KG but less than 3 KG of PCP (actual). M 15 KG or more of Methamphetamine. or at least 500 G but less than 1.5 KG of Cocaine Base.5 KG of Cocaine Base. M 30 KG or more of PCP. At least 50 KG but less than 150 KG of Cocaine. At least 5 KG but less than 15 KG of Amphetamine.000 but less than 30. At least 4 KG but less than 12 KG of Fentanyl. At least 10 KG but less than 30 KG of PCP.5 KG of "Ice".000.000. At least 100 G but less than 300 G of LSD. or 3 KG or more of PCP (actual).5 KG or more of Cocaine Base.875.5 KG or more of Methamphetamine (actual). At least 2.5 KG of Amphetamine (actual).000 units of Schedule I or II Depressants. 150 KG or more of Cocaine.000 units of Ketamine. At least 10. M 4. At least 3 KG but less than 10 KG of Heroin. At least 625. M 15 KG or more of Amphetamine. At least 200 KG but less than 600 KG of Hashish Oil. At least 500 G but less than 1.5 KG or more of "Ice".5 KG but less than 4. or 1. At least 1 KG but less than 3 KG of a Fentanyl Analogue.5 KG or more of Amphetamine (actual).5 KG of Methamphetamine (actual). M 30.000 but less than 30. 2009 (c) DRUG QUANTITY TABLE Controlled Substances and Quantity* (1) M M Base Offense Level Level 38 30 KG or more of Heroin. Level 36 (3) M M M M Level 34 – 142 – .000. M 600 KG or more of Hashish Oil. At least 1. At least 3 KG but less than 10 KG of PCP.000 but less than 1.000 KG or more of Hashish.000.000 units or more of Ketamine.000 KG but less than 30. At least 10.000 KG of Marihuana.875. 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. M 30.000 units or more of Schedule I or II Depressants. or at least 500 G but less than 1.000. M 3 KG or more of a Fentanyl Analogue.000 units or more of Flunitrazepam.000 units of Flunitrazepam. M 12 KG or more of Fentanyl.1 GUIDELINES MANUAL November 1.§2D1. M 300 G or more of LSD.000 KG of Hashish.000. M 30. or at least 500 G but less than 1. or 1. or 1. M 1. At least 10.000 KG or more of Marihuana. M 6.000 KG but less than 6. At least 5 KG but less than 15 KG of Methamphetamine. or at least 300 G but less than 1 KG of PCP (actual). At least 15 KG but less than 50 KG of Cocaine.

2009 GUIDELINES MANUAL §2D1. At least 1. At least 70 G but less than 100 G of a Fentanyl Analogue.000 KG of Hashish.000 but less than 10. M At least 300 G but less than 1 KG of a Fentanyl Analogue. or at least 150 G but less than 500 G of "Ice".000. At least 5 KG but less than 15 KG of Cocaine. M At least 187. At least 350 G but less than 500 G of Amphetamine.1 At least 1. M At least 3. At least 3.500 but less than 625.000 but less than 10.500 units of Flunitrazepam. At least 50 G but less than 150 G of Cocaine Base. or at least 150 G but less than 500 G of Amphetamine (actual). M At least 60 KG but less than 200 KG of Hashish Oil. At least 200 KG but less than 600 KG of Hashish.000 KG of Marihuana. M At least 3.000.000 units of Ketamine.5 KG but less than 5 KG of Cocaine. At least 1 KG but less than 3 KG of PCP. At least 10 G but less than 30 G of LSD. or at least 50 G but less than 150 G of "Ice".000 but less than 3.000. At least 500 G but less than 1. At least 350 G but less than 500 G of Methamphetamine. or at least 35 G but less than 50 G of "Ice". At least 1. At least 700 G but less than 1 KG of Heroin.000 but less than 3. At least 62. or at least 100 G but less than 300 G of PCP (actual). or at least 50 G but less than 150 G of Methamphetamine (actual). At least 20 KG but less than 60 KG of Hashish Oil. At least 700 G but less than 1 KG of PCP. M At least 1.000 units of Schedule I or II Depressants. At least 150 G but less than 500 G of Cocaine Base.November 1. M At least 3. M (4) M M M M M M M M M M M M M M M At least 1 KG but less than 3 KG of Heroin.5 KG but less than 5 KG of Amphetamine. or at least 35 G but less than 50 G of Amphetamine (actual).000.2 KG of Fentanyl. or at least 70 G but less than 100 G of PCP (actual).5 KG of Amphetamine. or at least 35 G but less than 50 G of Methamphetamine (actual). At least 100 G but less than 300 G of a Fentanyl Analogue. M At least 600 KG but less than 2. At least 500 G but less than 1. 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.000 KG but less than 10. At least 1.000 KG but less than 3.000.000. At least 400 G but less than 1. Level 32 (5) M M M M M Level 30 M M M M – 143 – .000 units of Schedule I or II Depressants. M At least 1. or at least 150 G but less than 500 G of Methamphetamine (actual).000.000 units of Ketamine.000 KG of Marihuana.000 units of Flunitrazepam.500 but less than 187.5 KG but less than 5 KG of Methamphetamine. At least 7 G but less than 10 G of LSD.000.2 KG but less than 4 KG of Fentanyl. At least 280 G but less than 400 G of Fentanyl.5 KG of Methamphetamine.

750 units of Flunitrazepam.500 units of Flunitrazepam. M At least 40 G but less than 160 G of Fentanyl.000 but less than 400. At least 140 KG but less than 200 KG of Hashish. or at least 20 G but less than 35 G of "Ice".000 or more units of Schedule III Hydrocodone.000 units of Ketamine. or at least 5 G but less than 20 G of Methamphetamine (actual). or at least 10 G but less than 40 G of PCP (actual). At least 2 KG but less than 3. At least 160 G but less than 280 G of Fentanyl. At least 35 G but less than 50 G of Cocaine Base. At least 400 G but less than 700 G of PCP. (6) M M M M M Level 28 M M M M M M M M M M M (7) At least 100 G but less than 400 G of Heroin. At least 8 KG but less than 14 KG of Hashish Oil. At least 700. At least 400 G but less than 700 G of Heroin. At least 500 G but less than 2 KG of Cocaine. or at least 5 G but less than 20 G of "Ice".000 units of Ketamine. M At least 2 KG but less than 8 KG of Hashish Oil.250 but less than 25.000 but less than 700.000 but less than 700. M At least 1 G but less than 4 G of LSD. M At least 20 G but less than 35 G of Cocaine Base. M At least 100.000. M At least 20 KG but less than 80 KG of Hashish.5 KG of Cocaine.000 but less than 1.000 units of Schedule I or II Depressants. At least 43. M At least 100.000 units of Schedule III Hydrocodone. or at least 20 G but less than 35 G of Methamphetamine (actual). M At least 100. At least 40 G but less than 70 G of a Fentanyl Analogue.000 units of Schedule I or II Depressants.000 but less than 400.000 KG of Marihuana. or at least 40 G but less than 70 G of PCP (actual). At least 400.000 but less than 700. At least 200 G but less than 350 G of Methamphetamine. M At least 6. M At least 10 G but less than 40 G of a Fentanyl Analogue. or at least 20 G but less than 35 G of Amphetamine (actual).000 units of Schedule III Hydrocodone. At least 200 G but less than 350 G of Amphetamine. At least 80 KG but less than 140 KG of Hashish. At least 400 KG but less than 700 KG of Marihuana.1 M M M M M M M GUIDELINES MANUAL November 1. At least 400. At least 400.000 units of Schedule I or II Depressants. M At least 100 KG but less than 400 KG of Marihuana.000 units of Flunitrazepam. or at least 5 G but less than 20 G of Amphetamine (actual). At least 700.000 but less than 400.750 but less than 62. At least 14 KG but less than 20 KG of Hashish Oil.000 but less than 1. M At least 50 G but less than 200 G of Amphetamine. M At least 100 G but less than 400 G of PCP.000.000 but less than 43. 2009 At least 700 KG but less than 1. 700. M M Level 26 – 144 – .000 units of Ketamine.§2D1. M At least 50 G but less than 200 G of Methamphetamine. At least 4 G but less than 7 G of LSD. At least 25.

2009 GUIDELINES MANUAL §2D1. At least 60. At least 40 G but less than 50 G of Amphetamine. M At least 40 G but less than 60 G of PCP.000 but less than 100. At least 80. At least 24 G but less than 32 G of Fentanyl. At least 800 MG but less than 1 G of LSD.000 but less than 80. At least 5 G but less than 20 G of Cocaine Base. At least 3. or at least 4 G but less than 6 G of PCP (actual). At least 30 G but less than 40 G of Amphetamine.2 KG but less than 1. M At least 3 G but less than 4 G of Cocaine Base. At least 8 G but less than 10 G of a Fentanyl Analogue. At least 80 G but less than 100 G of PCP.000 units of Schedule I or II Depressants.000 units of Ketamine. M At least 200 G but less than 300 G of Cocaine.000 but less than 100.000 units of Schedule III Hydrocodone.000 units of Flunitrazepam. At least 5.000 but less than 80. At least 32 G but less than 40 G of Fentanyl. or at least 3 G but less than 4 G of "Ice". or at least 3 G but less than 4 G of Methamphetamine (actual). or at least 8 G but less than 10 G of PCP (actual). or at least 2 G but less than 3 G of "Ice". At least 80. At least 40 G but less than 50 G of Methamphetamine. At least 6 G but less than 8 G of a Fentanyl Analogue. At least 600 MG but less than 800 MG of LSD. or at least 3 G but less than 4 G of Amphetamine (actual). or at least 4 G but less than 5 G of Methamphetamine (actual). Level 20 – 145 – . At least 60 G but less than 80 G of PCP.000 but less than 80.750 but less than 5. At least 80 KG but less than 100 KG of Marihuana.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 1. At least 16 KG but less than 20 KG of Hashish.6 KG but less than 2 KG of Hashish Oil.000 units of Schedule III Hydrocodone. or at least 4 G but less than 5 G of "Ice". or at least 2 G but less than 3 G of Methamphetamine (actual).6 KG of Hashish Oil. At least 60 G but less than 80 G of Heroin.000 units of Ketamine.000 units of Schedule I or II Depressants. At least 30 G but less than 40 G of Methamphetamine. At least 4 G but less than 5 G of Cocaine Base. At least 60 KG but less than 80 KG of Marihuana.000 but less than 100. or at least 4 G but less than 5 G of Amphetamine (actual). At least 12 KG but less than 16 KG of Hashish.250 units of Flunitrazepam. At least 80.000 but less than 6. At least 400 G but less than 500 G of Cocaine. At least 60. (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.November 1. At least 60. At least 1. or at least 6 G but less than 8 G of PCP (actual). At least 300 G but less than 400 G of Cocaine. M At least 20 G but less than 30 G of Methamphetamine.

750 units of Flunitrazepam. M At least 2 G but less than 4 G of a Fentanyl Analogue. M At least 2 G but less than 3 G of Cocaine Base. M At least 500 G but less than 800 G of Hashish Oil. M At least 800 G but less than 1.000 but less than 60. or at least 500 MG but less than 1 G of "Ice".000 units of Schedule I or II Depressants. or at least 500 MG but less than 1 G of Methamphetamine (actual). M At least 2. M At least 5 G but less than 10 G of Amphetamine. M At least 50 G but less than 100 G of Cocaine. M At least 400 MG but less than 600 MG of LSD. M At least 20 G but less than 40 G of PCP. M At least 40. M At least 100 G but less than 200 G of Cocaine. M At least 4 G but less than 6 G of a Fentanyl Analogue. or at least 2 G but less than 4 G of PCP (actual). or at least 1 G but less than 2 G of "Ice". M At least 20. M At least 40.000 units of Ketamine.1 M GUIDELINES MANUAL November 1.000 units of Schedule III substances (except Ketamine or Hydrocodone). (12) M At least 10 G but less than 20 G of Heroin.2 KG of Hashish Oil. M At least 8 G but less than 16 G of Fentanyl. M 40.000 units of Ketamine. M At least 20. M At least 5 KG but less than 8 KG of Hashish.000 units of Schedule I or II Depressants. M At least 8 KG but less than 12 KG of Hashish.000 but less than 40.000 but less than 60. M At least 5 G but less than 10 G of Methamphetamine. M At least 10 G but less than 20 G of Amphetamine.000 but less than 60. M At least 10 G but less than 20 G of PCP. M At least 20 KG but less than 40 KG of Marihuana. M At least 100 MG but less than 200 MG of LSD. M At least 1 G but less than 2 G of Cocaine Base.§2D1. or at least 2 G but less than 3 G of Amphetamine (actual). M At least 40. 2009 At least 20 G but less than 30 G of Amphetamine. M At least 20. or at least 1 G but less than 2 G of Methamphetamine (actual).500 units of Flunitrazepam. or at least 1 G but less than 2 G of PCP (actual).000 or more units of Schedule III substances (except Ketamine or Hydrocodone).500 but less than 3. M At least 40 KG but less than 60 KG of Marihuana.000 but less than 40. or at least 500 MG but less than 1 G of Amphetamine (actual). M At least 20. M At least 10 G but less than 20 G of Methamphetamine.000 units of Schedule III Hydrocodone. M At least 200 MG but less than 400 MG of LSD. M At least 16 G but less than 24 G of Fentanyl.000 units of Schedule III Hydrocodone. (11) M At least 20 G but less than 40 G of Heroin. Level 18 Level 16 – 146 – . or at least 1 G but less than 2 G of Amphetamine (actual).000 but less than 40. M At least 1.000 but less than 40.250 but less than 2.

M Less than 500 MG of a Fentanyl Analogue. At least 10. M At least 50 MG but less than 100 MG of LSD. At least 10 KG but less than 20 KG of Marihuana. M Less than 2. or less than 250 MG of "Ice".250 units of Flunitrazepam. or at least 250 MG but less than 500 MG of "Ice".000 but less than 20. M Less than 5 G of PCP.000 units of Schedule III substances (except Ketamine or Hydrocodone). M At least 2. M At least 5. At least 625 but less than 1.000 but less than 10.000 units of Schedule III Hydrocodone. 2009 GUIDELINES MANUAL §2D1. M At least 500 G but less than 1 KG of Hashish. or less than 250 MG of Amphetamine (actual).000 units of Schedule I or II Depressants. At least 1 G but less than 2 G of a Fentanyl Analogue.000 units of Ketamine.5 G but less than 5 G of Methamphetamine. At least 10.5 G but less than 5 G of Amphetamine. or less than 500 MG of PCP (actual). or at least 500 MG but less than 1 G of PCP (actual). M Less than 50 MG of LSD. M Less than 500 MG of Cocaine Base. M At least 100 G but less than 200 G of Hashish Oil. M At least 5.000 but less than 10. M At least 5 KG but less than 10 KG of Marihuana. M At least 312 but less than 625 units of Flunitrazepam. At least 10. M At least 500 MG but less than 1 G of a Fentanyl Analogue.000 units of Schedule III substances (except Ketamine or Hydrocodone). At least 2 KG but less than 5 KG of Hashish. (13) M At least 5 G but less than 10 G of Heroin.1 M M M M M M M M M M At least 4 G but less than 8 G of Fentanyl. M Less than 2 G of Fentanyl. M At least 5 G but less than 10 G of PCP.5 G of Amphetamine. Level 14 Level 12 – 147 – . M At least 2.000 but less than 20. (14) M Less than 5 G of Heroin.000 units of Schedule III Hydrocodone.000 units of Schedule I or II Depressants. or at least 250 MG but less than 500 MG of Amphetamine (actual). At least 200 G but less than 500 G of Hashish Oil.000 but less than 20.000 units of Ketamine. M At least 50 G but less than 100 G of Hashish Oil. or at least 250 MG but less than 500 MG of Methamphetamine (actual). or less than 250 MG of Methamphetamine (actual). M At least 5. M Less than 25 G of Cocaine. M At least 25 G but less than 50 G of Cocaine.000 but less than 10. M At least 5.5 G of Methamphetamine.November 1.5 KG but less than 5 KG of Marihuana.000 but less than 10. M At least 2 G but less than 4 G of Fentanyl. M At least 1 KG but less than 2 KG of Hashish.000 but less than 20. At least 10. M At least 2. M At least 500 MG but less than 1 G of Cocaine Base. M Less than 2.

M At least 1.000 but less than 2. If a mixture or substance contains more than one controlled substance.000 units of Ketamine. M At least 1. M At least 20 G but less than 50 G of Hashish Oil. 2009 At least 2. At least 156 but less than 312 units of Flunitrazepam. M Less than 50 G of Hashish.000 units of Schedule III substances (except Ketamine or Hydrocodone). M At least 5 G but less than 20 G of Hashish Oil.000 but less than 2.000 but less than 40.500 units of Schedule III Hydrocodone.000 units of Schedule I or II Depressants.000 but less than 2. M At least 4. (15) M At least 1 KG but less than 2.000 or more units of Schedule V substances.500 units of Ketamine.500 units of Schedule III substances (except Ketamine or Hydrocodone). 40. M Less than 250 units of Schedule I or II Depressants. M 40. M Less than 5 G of Hashish Oil. 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. M At least 16. M Less than 62 units of Flunitrazepam. M At least 250 but less than 1.000 but less than 2.000 units of Schedule IV substances (except Flunitrazepam). M Less than 250 units of Ketamine. – 148 – .000 or more units of Schedule IV substances (except Flunitrazepam).000 units of Schedule I or II Depressants.000 units of Ketamine. M At least 50 G but less than 200 G of Hashish. M Less than 4.000 units of Schedule III Hydrocodone. M At least 250 but less than 1.000 units of Schedule IV substances (except Flunitrazepam). M At least 250 but less than 1. M At least 250 but less than 1. (17) M Less than 250 G of Marihuana. M At least 200 G but less than 500 G of Hashish. At least 2.5 KG of Marihuana.000 units of Schedule IV substances (except Flunitrazepam).500 but less than 5.000 units of Schedule III Hydrocodone.§2D1.000 units of Schedule III substances (except Ketamine or Hydrocodone).500 but less than 5.1 M M M M M M GUIDELINES MANUAL November 1. At least 2. (16) M At least 250 G but less than 1 KG of Marihuana. M At least 1. M Less than 250 units of Schedule III Hydrocodone.000 but less than 16. M Less than 250 units of Schedule III substances (except Ketamine or Hydrocodone). *Notes to Drug Quantity Table: (A) Level 10 Level 8 Level 6 Unless otherwise specified. M At least 62 but less than 156 units of Flunitrazepam.500 but less than 5.500 units of Schedule I or II Depressants. M At least 1. the weight of the entire mixture or substance is assigned to the controlled substance that results in the greater offense level.000 units of Schedule V substances. At least 2. M Less than 40.500 but less than 5.

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

arrested at his residence. Similarly. except as otherwise provided. GUIDELINES MANUAL November 1.S. with a bale of rain-soaked marihuana or freshly harvested marihuana that had not been dried). 2D1. In the case of a controlled substance that is not specifically referenced in this guideline. 2D1. to which §2D2. is treated as simple possession.1. isomers. 5. all salts of isomers. the court may use any reasonable method to approximate the weight of the mixture or substance to be counted. any analogue of that controlled substance.11(c)(1).2(a)(1) and (2).§2D1.C. 2009 "Mixture or substance" as used in this guideline has the same meaning as in 21 U.1(b)(1). § 841(b)(4). 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. 2D1.5(a)(1). beeswax in a cocaine/beeswax statue. An upward departure nonetheless may be warranted when the mixture or substance counted in the Drug Quantity Table is combined with other. § 802(32).8. and 2D2. had an unloaded hunting rifle in the closet. non-countable material in an unusually sophisticated manner in order to avoid detection. and waste water from an illicit laboratory used to manufacture a controlled substance. determine the base offense level using the marihuana equivalency of the most closely related controlled substance referenced in this guideline.—Any reference to a particular controlled substance in these guidelines includes all salts. The enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons.1 (Application Instructions). Definitions of "firearm" and "dangerous weapon" are found in the Commentary to §1B1.6. If such material cannot readily be separated from the mixture or substance that appropriately is counted in the Drug Quantity Table. 4. Mixture or substance does not include materials that must be separated from the controlled substance before the controlled substance can be used. § 841. Distribution of "a small amount of marihuana for no remuneration". consider the following: 3. For example. unless it is clearly improbable that the weapon was connected with the offense. The adjustment should be applied if the weapon was present. 2D1. 2D1. in the case of marihuana having a moisture content that renders the marihuana unsuitable for consumption without drying (this might occur.12(c)(1). For purposes of this guideline "analogue" has the meaning given the term "controlled substance analogue" in 21 U. Any reference to cocaine includes ecgonine and coca leaves. except as expressly provided. The statute and guideline also apply to "counterfeit" substances.C. an approximation of the weight of the marihuana without such excess moisture content is to be used. see §§2D1. the enhancement would not be applied if the defendant. 2.7(b)(1). the court shall.C. 2D1.S. In determining the appropriate sentence. except extracts of coca leaves from which cocaine and ecgonine have been removed. § 802 to mean controlled substances that are falsely labeled so as to appear to have been legitimately manufactured or distributed. Examples of such materials include the fiberglass in a cocaine/fiberglass bonded suitcase. which are defined in 21 U. to the extent practicable.1 Application Notes: 1. 21 U.C.S. and. In determining the most closely related controlled substance. – 150 – . The enhancement also applies to offenses that are referenced to §2D1.S. for example. Analogues and Controlled Substances Not Referenced in this Guideline.1 applies.

C. These professionals include doctors. this factor is particularly relevant where smaller quantities are involved. Since controlled substances are often diluted and combined with other substances as they pass down the chain of distribution. or oxycodone for which the guideline itself provides for the consideration of purity (see the footnote to the Drug Quantity Table). amphetamine." See §5K1.1 (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. an enhancement under §3B1. (B) (C) 6. pilots. See §5C1. Note. Use of Drug Equivalency Tables.—A defendant who used special skills in the commission of the offense may be subject to an adjustment under §3B1. depressant. Interaction with §3B1. or mixtures of unusually high purity may warrant an upward departure.November 1.3 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. § 994(n). Tables for making the necessary conversions are provided below.S. Whether a lesser or greater quantity of the controlled substance not referenced in this guideline is needed to produce a substantially similar effect on the central nervous system as a controlled substance referenced in this guideline. § – 151 – 10.C. may be relevant in the sentencing process because it is probative of the defendant’s role or position in the chain of distribution. or position may be used to significantly facilitate the commission of a drug offense. the statute (21 U. compounds. The purity of the controlled substance.S. or hallucinogenic effect on the central nervous system of a controlled substance referenced in this guideline. Trafficking in controlled substances. 7.— (A) Controlled Substances Not Referenced in Drug Quantity Table.S.—The Commission has used the sentences provided in. Where there are multiple transactions or multiple drug types. accountants. however.C. .3. and others whose special skill. depressant. that if an adjustment from subsection (b)(2)(C) applies. Certain professionals often occupy essential positions in drug trafficking schemes.3 (Abuse of Position of Trust or Use of Special Skill).2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases). As large quantities are normally associated with high purities. the fact that a defendant is in possession of unusually pure narcotics may indicate a prominent role in the criminal enterprise and proximity to the source of the drugs. methamphetamine. as provided in 28 U. financiers. Additionally. 2009 GUIDELINES MANUAL §2D1.3 (Abuse of Position of Trust or Use of Special Skill). 18 U. or hallucinogenic effect on the central nervous system that is substantially similar to the stimulant. In addition. the quantities of drugs are to be added. Whether the controlled substance not referenced in this guideline has a stimulant. trade. chemists. boat captains. profession. this mandatory minimum sentence may be "waived" and a lower sentence imposed (including a downward departure). § 3553(f) provides an exception to the applicability of mandatory minimum sentences in certain cases.1 (Substantial Assistance to Authorities). by reason of a defendant’s "substantial assistance in the investigation or prosecution of another person who has committed an offense. and equivalences derived from. particularly in the case of heroin. except in the case of PCP. attorneys. Where a mandatory (statutory) minimum sentence applies. do not apply §3B1. 9. bankers. 8.

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

25 kilograms). 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. a Schedule IV drug.—Except as provided in subdivision (ii).25 kilograms). 1.—The 2-level reduction provided in subdivision (i) shall not apply in a case in which: (I) the offense involved 4. if the offense involves cocaine base ("crack") and one or more other controlled substance. is equivalent to 625 grams of marihuana. (ii) (II) – 153 – .99 + . The defendant is convicted of selling 80 grams of cocaine (Level 16) and five kilograms of marihuana (Level 14).— (i) In General. 100.000 units of a Schedule V substance.99 kilograms of marihuana set forth as the maximum equivalent weight for Schedule IV substances (without the cap it would have been 6. The total is therefore equivalent to 21 kilograms of marihuana.5 kg or more. IV..125 kilograms of marihuana.000 units of a Schedule III substance.99 (56 + 4. is subject to the cap of 59. determined by adding together the above amounts. 2009 GUIDELINES MANUAL §2D1.99 kilograms of marihuana set forth as the maximum equivalent weight for Schedule III substances). or less than 250 mg.1 (ii) The defendant is convicted of selling 500 grams of marihuana (Level 8) and five kilograms of diazepam (Level 8). Without the cap. The marihuana equivalency for the Schedule IV substance is subject to a cap of 4. The cocaine is equivalent to 16 kilograms of marihuana.99 kilograms of marihuana set forth as the maximum combined equivalent weight for Schedule III. 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. The total. determine the combined offense level as provided by subdivision (B) of this note.November 1. Exceptions to 2-level Reduction. and reduce the combined offense level by 2 levels. The diazepam. The defendant is convicted of selling 56. has an offense level of 10 in the Drug Quantity Table. (iii) (iv) (D) Determining Base Offense Level in Offenses Involving Cocaine Base and Other Controlled Substances. and 200.999) kilograms. the combined equivalent weight would have been 61. of cocaine base.e. The combined equivalent weight. The marihuana equivalency for the Schedule III substance is 56 kilograms of marihuana (below the cap of 59. the controlled substance(s) other than cocaine base). and V substances. which has an offense level of 18 in the Drug Quantity Table.000 units of a Schedule IV substance.

Because the combined offense level for the two drug types after the 2-level reduction is less than the offense level for the heroin.1 (iii) Examples.— (I) GUIDELINES MANUAL November 1. The case involves 5 gm of cocaine base and 6 kg of heroin.100 kg of marihuana. which. which is reduced by two levels to 32. 20 gm of cocaine base converts to 400 kg of marihuana (20 gm x 20 kg = 400 kg). which is reduced by two levels to level 28. and 1. 710 kg of marihuana corresponds to a combined offense level of 30. the combined offense level for all three drug types remains level 28. and 10 kg of marihuana. Under the Drug Quantity Table.000 kg). 1.000 kg of marihuana corresponds to an offense level 34 under the Drug Quantity Table. the reduction does not apply and the combined offense level for the two drugs remains level 34. the 6.§2D1. 5 gm of cocaine base converts to 100 kg of marihuana (5 gm x 20 kg = 100 kg). (II) (E) Drug Equivalency Tables. 6.000 kg of marihuana (6. 2009 The case involves 20 gm of cocaine base. 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. Under the Drug Equivalency Tables in subdivision (E) of this note.100 kg of marihuana corresponds to a combined offense level of 34. which. Under the Drug Equivalency Tables in subdivision (E) of this note.5 kg of cocaine converts to 300 kg of marihuana (1. their combined equivalent quantity of 310 kg of marihuana corresponds to a combined offense level of 26 under the Drug Quantity Table. For the cocaine and marihuana.5 kg x 200 gm = 300 kg). when added to the 10 kg of marihuana results in a combined equivalent quantity of 710 kg of marihuana.— 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 – . For the heroin.5 kg of cocaine. when added together results in a combined equivalent quantity of 6.000 gm x 1 kg = 6.

2009 GUIDELINES MANUAL §2D1.01 gm of marihuana 100 gm of marihuana 100 gm of marihuana 80 gm of marihuana – 155 – . or in combination with another controlled substance. that the minimum offense level from the Drug Quantity Table for any of these controlled substances individually. 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 .November 1.5 kg of marihuana 2.5 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.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)= 2.5 kg of marihuana 2. is level 12.

LSD. 2009 380 gm of marihuana 40 gm of marihuana 1 gm of N-N-Dimethylamphetamine = *Provided. granulated.1 gm of marihuana 0. = 1 gm of Hashish Oil = 1 gm of Cannabis Resin or Hashish = 1 gm of Tetrahydrocannabinol. Organic = 1 gm of Tetrahydrocannabinol. etc. 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.§2D1. Schedule I Marihuana 1 gm of Marihuana/Cannabis.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 2.5-Dimethoxy-4-methylamphetamine/DOM = 1 gm of 3. is level 12. PCP.4-Methylenedioxymethamphetamine/MDMA = 1 gm of 3.1 1 gm of Methcathinone = GUIDELINES MANUAL November 1. that the minimum offense level from the Drug Quantity Table for any of these controlled substances individually. or in combination with another controlled substance.5 kg of marihuana 1. powdered.4-Methylenedioxyamphetamine/MDA = 1 gm of 3. is level 12.4-Methylenedioxy-N-ethylamphetamine/MDEA= 1 gm of Paramethoxymethamphetamine/PMA = 1 gm of 1-Piperidinocyclohexanecarbonitrile/PCC = 1 gm of N-ethyl-1-phenylcyclohexylamine (PCE) = 0.5-Dimethoxyamphetamine/DOB = 1 gm of 2. Synthetic = 1 gm of marihuana 50 gm of marihuana 5 gm of marihuana 167 gm of marihuana 167 gm of marihuana – 156 – . 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.5 gm of marihuana 0. or in combination with another controlled substance.

1 Flunitrazepam ** 1 unit of Flunitrazepam = 16 gm of marihuana **Provided.99 kilograms of marihuana.0625 gm of marihuana *****Provided. and Schedule V substances is level 8. that the minimum offense level from the Drug Quantity Table for flunitrazepam individually.November 1. 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. that the combined equivalent weight of all Schedule III substances (except ketamine). – 157 – . Ketamine 1 unit of ketamine = 1 gm of marihuana Schedule IV Substances (except flunitrazepam)***** 1 unit of a Schedule IV Substance (except Flunitrazepam)= 0. Schedule IV substances (except flunitrazepam). and Schedule V substances shall not exceed 999. 2009 GUIDELINES MANUAL §2D1. Schedule III Hydrocodone**** 1 unit of Schedule III hydrocodone = 1 gm of marihuana ****Provided. or in combination with any Schedule I or II depressants. 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 = 8.99 kilograms of marihuana. Schedule IV substances (except flunitrazepam). that the combined equivalent weight of all Schedule IV (except flunitrazepam) and V substances shall not exceed 4. Schedule III substances. Schedule IV substances.99 kilograms of marihuana. and Schedule V substances shall not exceed 59.

not the weight of the entire tablets.§2D1.000 gm 1 gm = 1. pseudoephedrine.8 mg.g. displays the typical weight per dose. 11. or capsule for certain controlled substances. pills. – 158 – . the following table is provided: MEASUREMENT CONVERSION TABLE 1 oz = 28.785 liters 1 qt = 0. that in a case involving ephedrine. Do not use this table if any more reliable estimate of the total weight is available from case-specific information. pill. in calculating the base offense level. Date Rape Drugs (except flunitrazipam. 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. pseudoephedrine.8 gm marihuana 8.6 gm 1 lb = 0.. multiply the number of doses. The Typical Weight Per Unit Table.000 mg 1 grain = 64. or capsules but not the weight of the controlled substance is known. GHB.35 gm 1 lb = 453. 100 doses of Mescaline at 500 mg per dose = 50 gms of mescaline). or ketamine) 1 ml of 1. or phenylpropanolamine contained in the tablets.946 liters 1 gm = 1 ml (liquid) 1 liter = 1.4-butanediol = 1 ml of gamma butyrolactone = 8. If the number of doses. prepared from information provided by the Drug Enforcement Administration.8 gm marihuana To facilitate conversions to drug equivalencies.00625 gm of marihuana ******Provided. or phenylpropanolamine tablets. 2009 Schedule V Substances****** 1 unit of a Schedule V Substance = 0. or capsules by the typical weight per dose in the table below to estimate the total weight of the controlled substance (e.000 ml 1 kg = 1. that the combined equivalent weight of Schedule V substances shall not exceed 999 grams of marihuana.1 GUIDELINES MANUAL November 1. use the weight of the ephedrine.4536 kg 1 gal = 3. pills.

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

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

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

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

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

amendments 620-625). amendments 369-371 and 394-396). amendment 657). 706. 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. amendment 715). 1987. 1994 (see Appendix C. November 1. amendment 608). and 499). Subsection (b)(10)(A) implements the instruction to the Commission in section 303 of Public Law 103–237. amendments 609-611). 1997 (see Appendix C. 1995 (see Appendix C. 1989 (see Appendix C. 1993 (see Appendix C.§2D1. 1990 (see Appendix C. 2006 (see Appendix C. 2009 carrier medium. Nonetheless. amendments 514-518).1 applicable to the quantity of controlled substances directly involving a protected location or an underage or pregnant individual. and 21). November 1.2. 2006 (see Appendix C. November 1. 302. 1992 (see Appendix C.C. November 1. March 27. Amended effective January 15. November 1. November 1. and 674). the instruction to the Commission in section 102 of Public Law 106–310. November 1. November 1. 2000 (see Appendix C.S. amendments 594 and 605). September 23. 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. amendments 19. or 26. §5G1. 2003 (see Appendix C. amendments 667. At the same time.1(b)).1 applicable to the total quantity of controlled substances involved in the offense. 1988 (see Appendix C. November 1. November 1. 484-488. amendment 640). 1991 (see Appendix C. November 1. amendments 705. otherwise. November 1. 2000 (see Appendix C. 1919 (1991) (holding that the term "mixture or substance" in 21 U. 2005 (see Appendix C. (Treating LSD on a carrier medium as weighing 0. amendments 479. if the offense involved a person less than eighteen years of age. (2) (3) (4) – 164 – .1 GUIDELINES MANUAL November 1. amendments 727 and 728). amendment 681).) Thus. 20. November 1. and 303). November 1. 2001 (see Appendix C. United States. November 1. May 1. 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. 1994 (see Appendix C. and 711). 2001 (see Appendix C.Ct. or 13.5 milligram per dose would produce offense levels equivalent to those for PCP. November 1. May 1. Drug Offenses Occurring Near Protected Locations or Involving Underage or Pregnant Individuals. § 841(b)(1) includes the carrier medium in which LSD is absorbed). Historical Note: Effective November 1. amendment 679). §2D1. amendment 505). amendment 318). amendments 123-134. 2002 (see Appendix C. Attempt or Conspiracy (a) Base Offense Level (Apply the greatest): (1) 2 plus the offense level from §2D1. 668. amendments 555 and 556). in a broader form. December 16. or 1 plus the offense level from §2D1. a controlled substance that comparative assessments indicate is more likely to induce violent acts and ancillary crime than is LSD. and (B) the decision in Chapman v. amendments 684 and 687). this approach does not override the applicability of "mixture or substance" for the purpose of applying any mandatory minimum sentence (see Chapman. 111 S. 2008 (see Appendix C. 2009 (see Appendix C. amendment 509). Subsections (b)(10)(C)(ii) and (D) implement. 2007 (see Appendix C. 2004 (see Appendix C. amendments 446 and 447).

3. November 1. § 845b). 1989 (see Appendix C. §§ 859 (formerly 21 U. For example.4 (Attempts and Conspiracies). 2000 (see Appendix C. effective November 1. the total amount of heroin involved in the offense). amendment 319). effective November 1. 1987. 2009 GUIDELINES MANUAL §2D1. amendment 23). amended effective January 15. the amount sold near the protected location). Attempt or Conspiracy (a) Base Offense Level (Apply the greater): – 165 – . [Deleted] Historical Note: Section 2D1. to Pregnant Women. 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. if the defendant. §2D1. See §1B1.C. amended effective November 1. amendments 136-138). amendment 421). or Within 1000 Feet of a School or College).S.C. 1988 (see Appendix C. the offense level from subsection (a)(1) would be level 16 (2 plus the offense level for the sale of 5 grams of heroin.3 (Distributing Controlled Substances to Individuals Younger than Twenty-One Years.C. 861 (formerly 21 U. sold 5 grams of heroin near a protected location and 10 grams of heroin elsewhere. 1988 (see Appendix C. was deleted by consolidation with the guidelines applicable to the underlying substantive offenses effective November 1. November 1. amendment 22). 1992 (see Appendix C. amendment 135). § 845). subsections (a)(1) and (a)(2) may result in different offense levels. November 1.C. amendment 447). 1987. 1989 (see Appendix C. Background: This section implements the direction to the Commission in Section 6454 of the AntiDrug Abuse Act of 1988. Historical Note: Effective November 1. 1989 (see Appendix C.S.S. §2D1. 1992 (see Appendix C. 1990 (see Appendix C.November 1.S. amendment 135). [Deleted] Historical Note: Section 2D1. §2D1. the offense level from subsection (a)(2) would be level 17 (1 plus the offense level for the sale of 15 grams of heroin. 1987. Continuing Criminal Enterprise.5. amendment 447). Amended effective January 15.4. November 1. was deleted by consolidation with §2D1. amendment 591).5 Commentary Statutory Provisions: 21 U.2 effective November 1. Application Note: 1. as part of the same course of conduct or common scheme or plan. § 845a).2(a). 860 (formerly 21 U. 1991 (see Appendix C. 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. November 1.

§ 848 provides a 20-year minimum mandatory penalty for the first conviction.S. §2D1. Commentary (2) Statutory Provision: 21 U. an upward departure may be warranted.C." 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. If the application of the guidelines results in a sentence below the minimum sentence required by statute.1 applicable to the underlying offense. § 848. If as part of the enterprise the defendant sanctioned the use of violence. Amended effective October 15. – 166 – . amendment 66). Attempt or Conspiracy (a) Base Offense Level: the offense level applicable to the underlying offense. Historical Note: Effective November 1. Application Notes: 1. Use of Communication Facility in Committing Drug Offense. or if the number of persons managed by the defendant was extremely large. 3.§2D1. § 848 establishes that a defendant controlled and exercised authority over one of the most serious types of ongoing criminal activity. amendment 447). Part B is not authorized because the offense level of this guideline already reflects an adjustment for role in the offense. An adjustment from Chapter Three.S. the statutory minimum shall be the guideline sentence. 2009 4 plus the offense level from §2D1. Part D (Multiple Counts). and a mandatory life sentence for principal administrators of extremely large enterprises. Part B (Role in the Offense).6.C. Title 21 U. a 30-year minimum mandatory penalty for a second conviction.S.C. this guideline provides a minimum base offense level of 38. Violations of 21 U. 1988 (see Appendix C. 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. See §5G1. 2. § 848. 1987.2(a)(1) and not part of the instant offense. or 38. 4. Under 21 U. 1989 (see Appendix C.5 (1) GUIDELINES MANUAL November 1. Background: Because a conviction under 21 U. amendment 139). November 1. Do not apply any adjustment from Chapter Three.S. § 848 will be grouped with other drug offenses for the purpose of applying Chapter Three. 1992 (see Appendix C.S.C. November 1.1(b).C.

if the resulting offense level is greater than that determined above. methamphetamine. as appropriate.1 for guidance in determining the scale of the offense. amendment 320). or Trafficking) or §2D2. Note that the Drug Quantity Table in §2D1. 1987. PCP. Unlawful Sale or Transportation of Drug Paraphernalia. distributor. or fentanyl analogue (§2D1. A communication facility includes any public or private instrument used in the transmission of writing. §2D1. pictures. § 857).g. a minimum offense level of 8 where the offense involves flunitrazepam (§2D1. 1990 (see Appendix C.1(c)(17)). Application Note: 1.S. cocaine (or other Schedule I or II stimulants). Amended effective November 1.C. 2009 GUIDELINES MANUAL §2D1. 2009 (see Appendix C. Importing.C. § 863 (formerly 21 U. 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).7. and a minimum offense level of 6 otherwise (§2D1. amendment 737). e. radio. Application Note: 1.1(c)(16)). signs. 1992 (see Appendix C. telephone.7 Commentary Statutory Provision: 21 U. Commentary Statutory Provision: 21 U. November 1. amendment 505). see Application Note 12 of the Commentary to §2D1. wire.. cocaine base.1 provides a minimum offense level of 12 where the offense involves heroin (or other Schedule I or II opiates).C. In a case involving a large-scale dealer. Where the offense level for the underlying offense is to be determined by reference to §2D1.1(c)(14)). signals. fentanyl. and sound. an upward departure may be warranted. § 843(b). Exporting. LSD (or other Schedule I or II hallucinogens). Attempt or Conspiracy (a) (b) Base Offense Level: 12 Cross Reference (1) If the offense involved a controlled substance. Conversely.S. November 1. where the offense was not committed for pecuniary – 167 – . Background: This section covers the use of a communication facility in committing a drug offense. apply §2D1.1.1 (Unlawful Manufacturing.1 (Unlawful Possession). amendment 447). 1994 (see Appendix C.November 1. November 1. Historical Note: Effective November 1.S. or manufacturer.

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

maintaining. amendment 646). or controlling any building. If the offense (i) involved the manufacture of amphetamine or methamphetamine.10 Background: This section covers the offense of knowingly opening. Attempt or Conspiracy (a) Base Offense Level: 23 Commentary Statutory Provision: 21 U. November 1. Attempt or Conspiracy (a) Base Offense Level (Apply the greater): (1) (2) (b) 3 plus the offense level from the Drug Quantity Table in §2D1.1. Placing or Maintaining Dangerous Devices on Federal Property to Protect the Unlawful Production of Controlled Substances.9. storing. 1992 (see Appendix C. (B) – 169 – . Amended effective November 1. If the resulting offense level is less than level 30. 2009 GUIDELINES MANUAL §2D1. distributing. or enclosure for the purpose of manufacturing. increase to level 30. managing. a "crack house").November 1. amendment 394). or 20. Endangering Human Life While Illegally Manufacturing a Controlled Substance. amendment 447). amendments 447 and 448). 1987.C. increase by 6 levels. Background: This section covers the offense of assembling. November 1. 1992 (see Appendix C. increase to level 27. Historical Note: Effective November 1. §2D1.10. §2D1. 2002 (see Appendix C. Historical Note: Effective November 1. and (ii) created a substantial risk of harm to the life of a minor or an incompetent. 1991 (see Appendix C.S. or using a controlled substance contrary to law (e. 2002 (see Appendix C. Specific Offense Characteristic (1) (Apply the greater): (A) If the offense involved the manufacture of amphetamine or methamphetamine.. November 1. Amended effective November 1. 1987. If the resulting offense level is less than level 27. placing. amendment 640).g. increase by 3 levels. room. or maintaining a "booby-trap" on federal property where a controlled substance is being manufactured or distributed. § 841(d)(1). or causing to be placed.

amendment 608). as appropriate.g. except that if (A) the defendant receives an adjustment under §3B1. Exporting or Possessing a Listed Chemical. or senility. mental retardation. Historical Note: Effective November 1. and (B) the base offense – 170 – . Attempt or Conspiracy (a) Base Offense Level: The offense level from the Chemical Quantity Table set forth in subsection (d) or (e). and the number of human lives placed at substantial risk of harm. November 1. amendment 447).— (A) Factors to Consider. Substantial Risk of Harm Associated with the Manufacture of Amphetamine and Methamphetamine. Unlawfully Distributing. for purposes of subsection (b)(1)(B). § 858..C. December 16. The manner in which hazardous or toxic substances were disposed.10 GUIDELINES MANUAL November 1. amendment 620). The duration of the offense. Importing. whether the offense created a substantial risk of harm to the life of a minor or an incompetent. Amended effective November 1.11. and the manner in which the chemicals or substances were stored. Application Note: 1. 1992 (see Appendix C. 2009 Commentary Statutory Provision: 21 U. 2001 (see Appendix C.S. Background: Subsection (b)(1) implements the instruction to the Commission in section 102 of Public Law 106–310. (ii) (iii) (iv) (B) Definitions. 1989 (see Appendix C. and the extent of the manufacturing operation. §2D1.1 (Criminal Sexual Abuse). amendment 140). whether the laboratory is located in a residential neighborhood or a remote area).§2D1.— In determining. 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. The location of the laboratory (e. 2000 (see Appendix C.2 (Mitigating Role). "Minor" has the meaning given that term in Application Note 1 of the Commentary to §2A3.—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.

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

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

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

At least 40 G but less than 120 G of Ergotamine. At least 150 KG but less than 500 KG of N-Methylpseudoephedrine. 2009 1135. 1200 KG or more of Methyl Ethyl Ketone. White Phosphorus. At least 660 G but less than 2.2 G or more of Iodine. At least 96 KG but less than 320 KG of Isosafrole. List II Chemicals 11 KG or more of Acetic Anhydride. At least 3 KG but less than 10 KG of Norpseudoephedrine. At least 2 KG but less than 6 KG of Benzyl Cyanide.5 G of Nitroethane. 1300 KG or more of Toluene. or Hypophosphorous Acid. At least 20 G but less than 60 G of Methylamine. 714 G or more of Red Phosphorus.11 GUIDELINES MANUAL November 1. White Phosphorus. 20 KG or more of Benzyl Chloride. At least 340. At least 120 G but less than 400 G of Ergotamine. At least 6 KG but less than 20 KG of Ethylamine.6 KG of Propionic Anhydride. 376. 1075 KG or more of Ethyl Ether. At least 96 KG but less than 320 KG of Piperonal. (2) List I Chemicals Level 28 At least 267 G but less than 890 G of Benzaldehyde. At least 50 KG but less than 150 KG of N-Methylpseudoephedrine. 1175 KG or more of Acetone. At least 150 KG but less than 500 KG of N-Methylephedrine. (3) List I Chemicals At least 89 G but less than 267 G of Benzaldehyde. At least 60 G but less than 200 G of Methylamine. At least 6 KG but less than 20 KG of Phenylacetic Acid.2 KG of Hydriodic Acid. Level 26 – 174 – . At least 480 G but less than 1. At least 20 G but less than 60 G of Ergonovine.5 G but less than 187.§2D1. 4-Methylenedioxyphenyl-2-propanone.5 L of Gamma-butyrolactone. At least 214 G but less than 714 G of Red Phosphorus. At least 32 KG but less than 96 KG of Isosafrole.5 L or more of Gamma-butyrolactone. At least 60 G but less than 200 G of Ergonovine. 10 KG or more of Potassium Permanganate. or Hypophosphorous Acid. At least 96 KG but less than 320 KG of Safrole. At least 220 G but less than 660 G of Hydriodic Acid.5 G but less than 625 G of Nitroethane.7 L but less than 1135. At least 62. At least 3 KG but less than 10 KG of Piperidine. At least 6 KG but less than 20 KG of Benzyl Cyanide. At least 50 KG but less than 150 KG of N-Methylephedrine. At least 187. At least 120 KG but less than 400 KG of 3. At least 2 KG but less than 6 KG of Ethylamine.

5 KG of Acetone. At least 43.3 KG of Acetic Anhydride. At least 700 G but less than 1 KG of Piperidine. At least 390 KG but less than 1300 KG of Toluene. At least 79. 2009 GUIDELINES MANUAL §2D1.2 G of Iodine. At least 22.4 KG but less than 32 KG of Isosafrole. – 175 – . At least 1 KG but less than 3 KG of Piperidine. At least 50 G but less than 71 G of Red Phosphorus. At least 35 KG but less than 50 KG of N-Methylephedrine. At least 40 KG but less than 120 KG of 3.4 KG but less than 2 KG of Phenylacetic Acid.4 KG but less than 2 KG of Ethylamine. At least 117.5 KG but less than 352. At least 1. At least 3 KG but less than 10 KG of Potassium Permanganate.5 L but less than 113. White Phosphorus. At least 32 KG but less than 96 KG of Piperonal.4 KG but less than 32 KG of Piperonal. 4-Methylenedioxyphenyl-2-propanone.5 KG but less than 1175 KG of Acetone. At least 1. At least 28 KG but less than 40 KG of 3. White Phosphorus.November 1. 4-Methylenedioxyphenyl-2-propanone. At least 14 G but less than 20 G of Ergonovine.4 KG but less than 32 KG of Safrole.6 L of Gamma-butyrolactone. At least 32 KG but less than 96 KG of Safrole.4 G but less than 376. At least 6 KG but less than 20 KG of Benzyl Chloride. At least 22. (4) List I Chemicals Level 24 At least 62. or Hypophosphorous Acid.7 L of Gamma-butyrolactone. List II Chemicals At least 1. At least 113. At least 1.6 L but less than 340. At least 2 KG but less than 6 KG of Benzyl Chloride.1 KG but less than 3. At least 71 G but less than 214 G of Red Phosphorus. List II Chemicals At least 3. or Hypophosphorous Acid.3 G but less than 89 G of Benzaldehyde. At least 322. At least 154 G but less than 220 G of Hydriodic Acid. At least 35 KG but less than 50 KG of N-Methylpseudoephedrine. At least 112 G but less than 160 G of Propionic Anhydride. At least 360 KG but less than 1200 KG of Methyl Ethyl Ketone. At least 700 G but less than 1 KG of Norpseudoephedrine. At least 22. At least 2 KG but less than 6 KG of Phenylacetic Acid.3 KG but less than 11 KG of Acetic Anhydride.5 G of Nitroethane.8 G but less than 62. At least 160 G but less than 480 G of Propionic Anhydride. At least 125. At least 14 G but less than 20 G of Methylamine.11 At least 1 KG but less than 3 KG of Norpseudoephedrine. At least 28 G but less than 40 G of Ergotamine. At least 352.5 KG but less than 1075 KG of Ethyl Ether.4 KG but less than 2 KG of Benzyl Cyanide.

4 KG of Phenylacetic Acid. At least 25 G but less than 43. List II Chemicals At least 726 G but less than 1. At least 800 G but less than 1. At least 1 KG but less than 3 KG of Potassium Permanganate. At least 64 G but less than 112 G of Propionic Anhydride. At least 16 G but less than 28 G of Ergotamine. At least 12. (5) List I Chemicals Level 22 At least 35.4 KG of Isosafrole.2 KG but less than 12. At least 87. At least 200 G but less than 800 G of Ethylamine.4 KG but less than 2 KG of Benzyl Chloride. At least 400 G but less than 700 G of Piperidine.11 GUIDELINES MANUAL November 1.4 L but less than 79. At least 8 G but less than 14 G of Ergonovine. At least 800 G but less than 1.§2D1.5 KG of Ethyl Ether.8 G of Iodine.5 L of Gamma-butyrolactone. 2009 At least 107. 4-Methylenedioxyphenyl-2-propanone.4 KG of Piperonal.5 KG of Ethyl Ether. At least 130 KG but less than 390 KG of Toluene. At least 800 G but less than 1. At least 20 KG but less than 35 KG of N-Methylephedrine.1 KG of Acetic Anhydride.9 G but less than 35. At least 400 G but less than 700 G of Norpseudoephedrine.8 KG but less than 22. Level 20 – 176 – .8 KG of Isosafrole.5 KG but less than 322. At least 3. At least 2 G but less than 8 G of Ergonovine.3 G of Benzaldehyde. At least 12.4 KG of Ethylamine. At least 91 KG but less than 130 KG of Toluene.25 KG but less than 117. At least 88 G but less than 154 G of Hydriodic Acid. At least 2 G but less than 8 G of Methylamine. At least 50.4 KG of Safrole.5 KG of Acetone. White Phosphorus. At least 4 G but less than 16 G of Ergotamine. At least 700 G but less than 1 KG of Potassium Permanganate. At least 22 G but less than 88 G of Hydriodic Acid. At least 20 KG but less than 35 KG of N-Methylpseudoephedrine.6 G of Benzaldehyde. At least 75. At least 29 G but less than 50 G of Red Phosphorus.4 G of Iodine.2 G but less than 87. At least 120 KG but less than 360 KG of Methyl Ethyl Ketone.8 G of Nitroethane.8 G but less than 125.8 KG but less than 22. At least 82. At least 16 KG but less than 28 KG of 3.4 KG of Benzyl Cyanide. or Hypophosphorous Acid.8 KG but less than 22. At least 84 KG but less than 120 KG of Methyl Ethyl Ketone. At least 12. At least 1. At least 45.25 KG but less than 107. At least 200 G but less than 800 G of Benzyl Cyanide. At least 8 G but less than 14 G of Methylamine.6 G but less than 62. (6) List I Chemicals At least 8.

At least 400 G but less than 700 G of Potassium Permanganate.2 KG of Isosafrole. At least 9. At least 6. At least 5 KG but less than 20 KG of N-Methylpseudoephedrine. List II Chemicals At least 440 G but less than 726 G of Acetic Anhydride.2 G but less than 4 G of Ergotamine. At least 100 G but less than 400 of Norpseudoephedrine.11 At least 5 KG but less than 20 KG of N-Methylephedrine. At least 3. At least 160 G but less than 200 G of Ethylamine.2 KG but less than 4 KG of 3. At least 5 G but less than 6. At least 3. At least 52 KG but less than 91 KG of Toluene.November 1. 2009 GUIDELINES MANUAL §2D1.4 L of Gamma-butyrolactone. – 177 – .1 G but less than 8. At least 7 G but less than 29 G of Red Phosphorus. At least 3. or Hypophosphorous Acid.6 G but less than 22 G of Hydriodic Acid.2 KG but less than 12. White Phosphorus.25 KG of Ethyl Ether.56 KG but less than 3. At least 11. At least 4 KG but less than 16 KG of 3. At least 2. 4-Methylenedioxyphenyl-2-propanone. At least 12. At least 43 KG but less than 75. At least 4 KG but less than 5 KG of N-Methylpseudoephedrine. At least 17.3 G but less than 25 G of Nitroethane.6 G but less than 2 G of Methylamine. At least 2.4 L of Gamma-butyrolactone. At least 800 G but less than 1.25 KG of Acetone.2 KG of Safrole. At least 12. White Phosphorus. At least 80 G but less than 100 G of Norpseudoephedrine.9 G of Benzaldehyde.6 G but less than 2 G of Ergonovine.56 KG but less than 3. At least 16 G but less than 64 G of Propionic Anhydride.56 KG but less than 3. or Hypophosphorous Acid.8 G but less than 16 G of Propionic Anhydride. At least 160 G but less than 200 G of Phenylacetic Acid.8 KG of Safrole.4 L but less than 45. At least 200 G but less than 800 G of Phenylacetic Acid. 4-Methylenedioxyphenyl-2-propanone. At least 3. (7) List I Chemicals Level 18 At least 7. At least 4 KG but less than 5 KG of N-Methylephedrine.2 KG of Piperonal. At least 47 KG but less than 82. At least 2.4 KG of Benzyl Chloride.2 G of Iodine. At least 80 G but less than 100 G of Piperidine.1 L but less than 11.3 G of Nitroethane. At least 48 KG but less than 84 KG of Methyl Ethyl Ketone.8 KG of Piperonal. At least 160 G but less than 200 G of Benzyl Cyanide.5 G but less than 50.2 KG but less than 12. At least 6 G but less than 7 G of Red Phosphorus. At least 1. At least 100 G but less than 400 G of Piperidine. At least 1.

or Hypophosphorous Acid. At least 1. White Phosphorus.6 KG but less than 10. 2009 List II Chemicals At least 110 G but less than 440 G of Acetic Anhydride.2 KG of 3. At least 6.2 G but less than 1.6 KG of Anthranilic Acid.6 KG but less than 12 KG of Methyl Ethyl Ketone.75 KG but less than 43 KG of Ethyl Ether. 4. At least 3 KG but less than 4 KG of N-Methylephedrine. List II Chemicals At least 88 G but less than 110 G of Acetic Anhydride. Level 14 – 178 – . At least 1. At least 1. At least 3 KG but less than 4 KG of N-Methylpseudoephedrine.8 G of Propionic Anhydride. At least 9. At least 10 G but less than 12.5 G but less than 10 G of Iodine.8 L but less than 9. At least 120 G but less than 160 G of Ethylamine.2 G but less than 17. At least 3.92 KG but less than 2.1 G of Benzaldehyde.56 KG of Safrole. At least 13.1 L of Gamma-butyrolactone.4 G but less than 3. At least 1. At least 2. At least 5.75 KG of Ethyl Ether. At least 11. At least 80 G but less than 100 G of Potassium Permanganate. 4-Methylenedioxyphenyl-2-propanone.4 KG but less than 13 KG of Toluene.7 KG but less than 3.56 KG of Piperonal. At least 12 KG but less than 48 KG of Methyl Ethyl Ketone.2 G of Ergotamine.5 G of Iodine.6 G but less than 5. At least 13 KG but less than 52 KG of Toluene. At least 4 G but less than 6 G of Red Phosphorus. At least 1. At least 2.56 KG of Isosafrole. At least 60 G but less than 80 G of Piperidine.6 G of Ergonovine. (9) List I Chemicals At least 2.§2D1.6 G of Methylamine.75 KG of Acetone.11 GUIDELINES MANUAL November 1.2 G but less than 1.4 KG but less than 11. At least 9. At least 10.6 KG or more of Anthranilic Acid.8 KG or more of N-Acetylanthranilic Acid. At least 7.8 G but less than 5 G of Nitroethane.4 KG but less than 3.75 KG but less than 47 KG of Acetone.6 G but less than 12. At least 100 G but less than 400 G of Potassium Permanganate.3 G of Benzaldehyde.6 G of Hydriodic Acid. At least 200 G but less than 800 G of Benzyl Chloride. At least 8.3 G but less than 7.92 KG but less than 2. At least 120 G but less than 160 G of Phenylacetic Acid. (8) List I Chemicals Level 16 3. At least 3. At least 120 G but less than 160 G of Benzyl Cyanide.92 KG but less than 2. At least 9. At least 60 G but less than 80 G of Norpseudoephedrine. At least 10. At least 160 G but less than 200 G of Benzyl Chloride.

At least 7.92 KG of Safrole.25 KG but less than 3 KG of N-Methylephedrine.5 G of Nitroethane.8 KG of N-Acetylanthranilic Acid.8 G but less than 13. Level 12 – 179 – . Less than 2. At least 40 G but less than 60 G of Piperidine. At least 5 G but less than 7.44 KG but less than 1. Less than 3. List II Chemicals At least 66 G but less than 88 G of Acetic Anhydride. At least 120 G but less than 160 G of Benzyl Chloride. Less than 8. Less than 1. Less than 3.November 1. or Hypophosphorous Acid.6 KG of N-Acetylanthranilic Acid. Less than 40 G of Norpseudoephedrine. At least 3. Less than 80 G of Phenylacetic Acid. At least 80 G but less than 120 G of Phenylacetic Acid. Less than 2.6 KG of Ethyl Ether. Less than 2. At least 60 G but less than 80 G of Potassium Permanganate.4 G of Ergotamine. Less than 80 G of Benzyl Cyanide.44 KG but less than 1. (10) List I Chemicals Less than 2. At least 7. At least 80 G but less than 120 G of Ethylamine.8 L of Gamma-butyrolactone.8 G of Hydriodic Acid. At least 800 MG but less than 1. At least 2. At least 3 G but less than 4 G of Red Phosphorus. At least 7. At least 7.6 G of Ergotamine. At least 1.4 KG of Acetone.2 KG but less than 9.2 G of Methylamine. At least 2.05 KG but less than 9. Less than 80 G of Ethylamine. At least 1.6 G but less than 2.92 KG of Isosafrole.45 KG but less than 8.6 G of Benzaldehyde.6 KG of Methyl Ethyl Ketone.4 KG of 3.6 G of Propionic Anhydride.92 KG of Piperonal. At least 6.5 L but less than 6.7 KG of Anthranilic Acid. Less than 1.8 KG but less than 10.25 KG of N-Methylephedrine.25 KG but less than 3 KG of N-Methylpseudoephedrine. At least 1. At least 8. Less than 800 MG of Ergonovine.2 G but less than 9. White Phosphorus.44 KG of Isosafrole. At least 1.4 KG of Toluene. At least 1. At least 800 MG but less than 1.5 G of Iodine.8 G of Nitroethane.6 KG but less than 4. At least 2.2 G of Hydriodic Acid. 2009 GUIDELINES MANUAL §2D1.5 G but less than 3. At least 40 G but less than 60 G of Norpseudoephedrine. At least 4.25 KG of N-Methylpseudoephedrine.8 KG but less than 2. 4-Methylenedioxyphenyl-2-propanone.44 KG but less than 1.11 At least 80 G but less than 120 G of Benzyl Cyanide.2 G of Ergonovine. Less than 800 MG of Methylamine.

unless it is improbable that the weapon was connected with the offense. 2009 Less than 40 G of Piperidine.45 KG of Ethyl Ether. (f)(1). Less than 120 G of Benzyl Chloride. or a person for whose conduct the defendant is accountable under §1B1.C. Less than 1. Less than 60 G of Potassium Permanganate. Less than 3 G of Red Phosphorus.. as appropriate. (2). Less than 1. (C) In a case involving ephedrine. pseudoephedrine." as used in subsection (c)(1).3 (Relevant 2. (B) To calculate the base offense level in an offense that involves two or more chemicals each of which is set forth in the Ephedrine. use the weight of the ephedrine. (2). "Firearm" and "dangerous weapon" are defined in the Commentary to §1B1. to calculate the base offense level in an offense that involves two or more chemicals. (4). Less than 7.44 KG of Safrole. and (ii) determine the base offense level corresponding to the aggregate quantity. or phenylpropanolamine tablets. Less than 7. in calculating the base offense level. §§ 841(c)(1). (i) aggregate the quantities of all such chemicals.05 KG of Acetone. White Phosphorus. regardless of whether the chemicals are set forth in different tables or in different categories (i. The adjustment in subsection (b)(1) should be applied if the weapon was present.11 GUIDELINES MANUAL November 1. and Phenylpropanolamine Quantity Table.2 G of Propionic Anhydride. ______________ *Notes: (A) Except as provided in Note (B). Less than 7. or Hypophosphorous Acid.§2D1. 865. Less than 4.5 L of Gamma-butyrolactone. Pseudoephedrine.S. List II Chemicals Less than 66 G of Acetic Anhydride. not the weight of the entire tablets.44 KG of Piperonal. means that the defendant. (3). Less than 5 G of Iodine. 4-Methylenedioxyphenyl-2-propanone. Commentary Statutory Provisions: 21 U. Less than 1.8 KG of 3. Less than 7. or phenylpropanolamine contained in the tablets. use the quantity of the single chemical that results in the greatest offense level. – 180 – .e.2 KG of Methyl Ethyl Ketone.1 (Application Instructions). Less than 6. "Offense involved unlawfully manufacturing a controlled substance or attempting to manufacture a controlled substance unlawfully. 960(d)(1). pseudoephedrine.8 KG of Toluene. Application Notes: 1. list I or list II) under subsection (d) or (e) of this guideline.

an upward departure may be warranted if the offense level does not adequately address the seriousness of the offense. – 181 – .—In a case involving two or more chemicals used to manufacture different controlled substances.1. Five kilograms of ephedrine result in a base offense level of level 38. 4. Example: The defendant was in possession of 80 grams of ephedrine and 50 grams of phenylpropanolamine. use the quantity of the single chemical that results in the greatest offense level. Under the grouping rules of §3D1. (C) Upward Departure.. list I or list II) under this guideline.1). or Phenylpropanolamine.—Except as provided in subdivision (B). the counts will be grouped together.November 1. Determine the offense level under each guideline separately. Example: The defendant was in possession of five kilograms of ephedrine and 300 grams of hydriodic acid. the base offense level would be level 38.— (A) Determining the Base Offense Level for Two or More Chemicals. The offense level for methylamine is determined by using §2D1. P2P (an immediate precursor) and methylamine (a listed chemical) are used together to produce methamphetamine. and (ii) determine the base offense level corresponding to the aggregate quantity. 300 grams of hydriodic acid result in a base offense level of level 26.11 Conduct). regardless of whether the chemicals are set forth in different tables or in different categories (i. (i) aggregate the quantities of all such chemicals.e. Pseudoephedrine. For example. and Phenylpropanolamine Quantity Table. 3. In certain cases. Ephedrine and hydriodic acid typically are used together in the same manufacturing process to manufacture methamphetamine. Importing.1 (Unlawfully Manufacturing.11. (B) Determining the Base Offense Level for Offenses involving Ephedrine.—If the offense involves two or more chemicals each of which is set forth in the Ephedrine.2(b). Exporting. or Trafficking). 2009 GUIDELINES MANUAL §2D1. the quantity of both the controlled substance and listed chemical should be considered (see Application Note 12 in the Commentary to §2D1. In this case. the defendant will be convicted of an offense involving a listed chemical covered under this guideline. The offense level for P2P is determined by using §2D1. Note that in determining the scale of the offense under §2D1. or to manufacture one controlled substance by different manufacturing processes. The base offense level for each chemical is calculated separately and the chemical with the higher base offense level is used. Pseudoephedrine. The base offense level corresponding to that aggregate quantity is level 32.1 (P2P is listed in the Drug Equivalency Table under Cocaine and Other Schedule I and II Stimulants (and their immediate precursors)). an aggregate quantity of 130 grams of such chemicals. if the offense involves two or more chemicals. and a related offense involving an immediate precursor or other controlled substance covered under §2D1. completed the actions sufficient to constitute the offense of unlawfully manufacturing a controlled substance or attempting to manufacture a controlled substance unlawfully. Cases Involving Multiple Chemicals.

Application of Subsection (b)(4). 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.S.—Section 865 of title 21. has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U.C. Imposition of Consecutive Sentence for 21 U. and Liability Act. for purposes of subsection (b)(4) and this note.11 5.3 (Relevant Conduct) involved any discharge.S.C. Compensation. The amount of ephedrine – 182 – . or disposal violation covered by the Resource Conservation and Recovery Act. § 6928(d).3 (Conditions of Probation) and 5D1. §§ 841(c)(2) and (f)(1). United States Code. For example.S. § 230(f)(2)). 8.1 (Restitution) and in fashioning appropriate conditions of supervision under §§5B1. pseudoephedrine. a sentence of 130 months for the underlying offense plus 21 months for the conduct covered by 21 U. § 1319(c).C. §§ 5124. 2009 Convictions under 21 U. emission. of a large number of persons to induce those persons to purchase a controlled substance. § 865. transportation. In a case in which the defendant possessed or distributed the listed chemical without such knowledge or belief. Subsection (b)(3) applies if the conduct for which the defendant is accountable under §1B1.C. divide the sentence between the sentence attributable to the underlying drug offense and the sentence attributable to 21 U. § 865 would achieve the "total punishment" in a manner that satisfies the statutory requirement of a consecutive sentence. requires the imposition of a mandatory consecutive term of imprisonment of not more than 15 years. 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. 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. storage. if the applicable adjusted guideline range is 151-188 months and the court determines a "total punishment" of 151 months is appropriate. 42 U. Additionally. on the judgment form. 6. Background: Offenses covered by this guideline involve list I chemicals (including ephedrine. release. (d)(3).S. specifying the number of months to be served consecutively for the conviction under 21 U. In such cases.S. § 865. In order to comply with the relevant statute.C. and 960(d)(2).S. and pheylpropanolamine) and list II chemicals.C.3 (Conditions of Supervised Release). § 865.—For purposes of subsection (b)(4).§2D1. 33 U. 42 U.S. GUIDELINES MANUAL November 1. 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). For example. an upward departure may be warranted. by means of an interactive computer service. the court should determine the appropriate "total punishment" and. ephedrine reacts with other chemicals to form methamphetamine. 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. "Interactive computer service".C. "mass-marketing by means of an interactive computer service" means the solicitation.S. List I chemicals are important to the manufacture of a controlled substance and usually become part of the final product. In some cases.C. or the Comprehensive Environmental Response. the Federal Water Pollution Control Act. For example. 9603(b).C. 7.S. treatment.

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

amendment 447). transportation.3 (Conditions of Supervised Release). means that the defendant. If the offense involved the large-scale manufacture. amendment 667). has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U. 33 U. "Offense involved unlawfully manufacturing a controlled substance or attempting to manufacture a controlled substance unlawfully. 2.S. Subsection (b)(2) applies if the conduct for which the defendant is accountable under §1B1. November 1. Application of Subsection (b)(3). and Liability Act. 9603(b). 864. amendment 558).S. 2004 (see Appendix C.C. §§ 843(a)(6). November 1.1 (Restitution) and in fashioning appropriate conditions of supervision under §§5B1. § 1319(c). release. 1992 (see Appendix C.3 (Relevant Conduct) involved any discharge. § 6928(d)." as used in subsection (c)(1).3 (Relevant Conduct). chemicals.S. 2000 (see Appendix 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. distribution. Exporting.—For purposes of subsection (b)(3).S. amendment 605).12 GUIDELINES MANUAL November 1. November 1.§2D1. "Interactive computer service". Historical Note: Effective November 1. 2009 §2D1. by means of an interactive computer service. Compensation. November 1. completed the actions sufficient to constitute the offense of unlawfully manufacturing a controlled substance or attempting to manufacture a controlled substance unlawfully. products. for purposes of subsection (b)(3) and this note. the Federal Water Pollution Control Act. §§ 5124. emission. or the Comprehensive Environmental Response.C.1 (Unlawful Manufacturing. amendment 520). 1991 (see Appendix C. In some cases.3 (Conditions of Probation) and 5D1. 42 U. "mass-marketing by means of an interactive computer service" means the solicitation. Importing. amendment 371). Amended effective November 1. 42 U. In such cases. amendment 626). or a person for whose conduct the defendant is accountable under §1B1. (7). equipment. treatment. an upward departure may be warranted. exportation. Commentary Statutory Provisions: 21 U. Additionally. 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. For example. § 230(f)(2)). – 184 – . or Trafficking) if the resulting offense level is greater than that determined above.C.S. 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). an upward departure may be warranted. Application Notes: 1. 1997 (see Appendix C.C. 3. storage. 4. transportation.C. or importation of prohibited flasks. 2001 (see Appendix C. 1995 (see Appendix C. of a large number of persons to induce those persons to purchase a controlled substance. or material. or disposal violation covered by the Resource Conservation and Recovery Act. November 1.

§§ 841(c)(3).4 (Terrorism) does not apply.S. Importing. and (b)(11) shall not apply.November 1.1 (Unlawful Manufacturing. "The offense level from §2D1. – 185 – . Historical Note: Effective November 1. (a)(3)(B). Narco-Terrorism (a) Base Offense Level: (1) The offense level from §2D1. see §1B1. Exporting. amendment 646). Importing.13. November 1. 1992 (see Appendix C. Presenting False or Fraudulent Identification to Obtain a Listed Chemical. amendment 447).1(a)(3)(A). (2) (3) Commentary Statutory Provisions: 21 U. Structuring Chemical Transactions or Creating a Chemical Mixture to Evade Reporting or Recordkeeping Requirements. or Possessing a Listed Chemical) if the defendant knew or believed that the chemical was to be used to manufacture a controlled substance unlawfully. except that §2D1. 2009 GUIDELINES MANUAL §2D1.14 §2D1. (b) Specific Offense Characteristic (1) If §3A1. §2D1. increase by 6 levels. Amended effective November 1.11" includes the base offense level and any applicable specific offense characteristic or cross reference.5 (Interpretation of References to Other Offense Guidelines). (f)(1).11 (Unlawfully Distributing. Attempt or Conspiracy) applicable to the underlying offense. Exporting. 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. otherwise.14. or The offense level from §2D1. 843(a)(4)(B). amendment 371). or 6.11 (Unlawfully Distributing. Application Note: 1.C. Attempt or Conspiracy (a) Base Offense Level (Apply the greatest): (1) The offense level from §2D1. Importing. 2002 (see Appendix C. 1991 (see Appendix C. (a)(8). or Trafficking (Including Possession with Intent to Commit These Offenses).

Exporting. correctional facility. or PCP. or Trafficking) as if the defendant had been convicted of possession of that mixture or substance with intent to distribute. Historical Note: Effective November 1. apply §2D1. an upward departure may be warranted.S. Where the circumstances establish intended consumption by a person other than the defendant. If the offense involved possession of a controlled substance in a prison. or cocaine base. UNLAWFUL POSSESSION §2D2. Importing. flunitrazepam. see Appendix A (Statutory Index). amendment 700). (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. or detention facility.C. § 960a. if the substance is any other controlled substance or a list I chemical. Attempt or Conspiracy (a) Base Offense Level: (1) 8. (2) Commentary Statutory Provision: 21 U. For additional statutory provision(s).C.1. or 6.2 (Providing or Possessing Contraband in Prison). 2007 (see Appendix C. LSD. Application Note: 1. ranging from – 186 – . § 844(a).1 (Unlawful Manufacturing. an analogue of these.§2D1. apply §2P1. 2009 Commentary Statutory Provision: 21 U. Background: Mandatory (statutory) minimum penalties for several categories of cases. if the substance is heroin or any Schedule I or II opiate. if the substance is cocaine.14 GUIDELINES MANUAL November 1. * * * * * 2. or 4. Unlawful Possession.S. The typical case addressed by this guideline involves possession of a controlled substance by the defendant for the defendant’s own consumption.

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

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

3. November 1. effective November 1. amendment 421). was deleted by consolidation with §2D3. (10).November 1. amendment 534). amended effective November 1. amendment 447). amended effective November 1. Attempt or Conspiracy). effective November 1. amendment 481). Attempt or Conspiracy). 1992 (see Appendix C. amended effective November 1. Historical Note: Effective November 1. Amended effective November 1. 1992 (see Appendix C. For additional statutory provision(s). 1993 (see Appendix C.5 Commentary Statutory Provisions: 21 U. (b). 1992 (see Appendix C. 1987.4 (Illegal Transfer or Transshipment of a Controlled Substance.4. 1987. was deleted by consolidation with §2D3. effective November 1. 954.5 (Violation of Recordkeeping or Reporting Requirements for Listed Chemicals and Certain Machines. 1993 (see Appendix C. §§ 842(a)(2). 1992 (see Appendix C. 961.3 (Illegal Use of Registration Number to Distribute or Dispense a Controlled Substance to Another Registrant or Authorized Person. amendment 447). [Deleted] Historical Note: Section 2D3. 2009 GUIDELINES MANUAL §2D3. §2D3. amendment 447). §2D3. 1993 (see Appendix C. 1990 (see Appendix C. – 189 – . amendment 481). 1993 (see Appendix C.2 effective November 1. [Deleted] Historical Note: Section 2D3. was deleted by consolidation with §2D3. see Appendix A (Statutory Index). 1987. November 1. amendment 359) and November 1.5. amendment 421) and November 1. amendment 481). November 1. 1991 (see Appendix C.S. 1991 (see Appendix C. 1991 (see Appendix C. amendment 447). §2D3. 1995 (see Appendix C.2 effective November 1.2 effective November 1. amendment 481). amendment 371). Attempt or Conspiracy).C. (9). [Deleted] Historical Note: Section 2D3.

Where there is more than one underlying offense. the alternative minimum base offense level is to be used. 1987. 3. Historical Note: Effective November 1. 4.2(a)(1) and not as part of the instant offense. 1963.OFFENSES INVOLVING CRIMINAL ENTERPRISES AND RACKETEERING 1. 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. Commentary Statutory Provisions: 18 U.§2E1.. Application Notes: 1. B. To determine whether subsection (a)(1) or (a)(2) results in the greater offense level. This treatment is designed to produce a result consistent with the distinction between 2. treat as a prior sentence under §4A1. and D to both (a)(1) and (a)(2).1 GUIDELINES MANUAL November 1. §§ 1962. If the offense level for the underlying racketeering activity is less than the alternative minimum level specified (i. treat each underlying offense as if contained in a separate count of conviction for the purposes of subsection (a)(2).e. Parts A. The offense level usually will be determined by the offense level of the underlying conduct. C. 2009 PART E . apply Chapter Three. the offense level corresponding to the most analogous federal offense is to be used. – 190 – .C. 19). Unlawful Conduct Relating to Racketeer Influenced and Corrupt Organizations (a) Base Offense Level (Apply the greater): (1) (2) 19. RACKETEERING Introductory Commentary Because of the jurisdictional nature of the offenses included. this subpart covers a wide variety of criminal conduct.1. Use whichever subsection results in the greater offense level. or the offense level applicable to the underlying racketeering activity.S. §2E1. Where such previously imposed sentence resulted from a conviction prior to the last overt act of the instant offense.

2. the alternative minimum base offense level is to be used. amendment 142). To determine whether subsection (a)(1) or (a)(2) results in the greater offense level.3 the instant offense and criminal history found throughout the guidelines. – 191 – .3. Interstate or Foreign Travel or Transportation in Aid of a Racketeering Enterprise (a) Base Offense Level (Apply the greater): (1) (2) 6. 3. If this treatment produces an anomalous result in a particular case. If the offense level for the underlying conduct is less than the alternative minimum base offense level specified (i. 1987.2. 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. 1989 (see Appendix C. Commentary Statutory Provision: 18 U. §2E1. § 1952. and D to both (a)(1) and (a)(2). a guideline departure may be warranted.S. Violent Crimes in Aid of Racketeering Activity (a) Base Offense Level (Apply the greater): (1) (2) 12. C. Amended effective June 15. the offense level corresponding to the most analogous federal offense is to be used. If the underlying conduct violates state law. Application Notes: 1. Historical Note: Effective November 1. 1988 (see Appendix C. Use whichever subsection results in the greater offense level. Historical Note: Effective November 1.November 1. apply Chapter Three. amendment 26). amendment 27). 6). Where there is more than one underlying offense. §2E1. B. treat each underlying offense as if contained in a separate count of conviction for the purposes of subsection (a)(2).C. November 1. Amended effective June 15. 1988 (see Appendix C. or the offense level applicable to the underlying crime or racketeering activity.e. Parts A. 1987. 2009 GUIDELINES MANUAL §2E1..

and 2C1. amended effective November 1. If the underlying conduct violates state law. 1989 (see Appendix C. 1989 (see Appendix C. § 1952A). or the offense level applicable to the underlying unlawful conduct.S. was deleted by consolidation with §§2B3. § 1959 (formerly 18 U. Historical Note: Effective November 1. the offense level corresponding to the most analogous federal offense is to be used. If the underlying conduct violates state law. amendment 143). Use of Interstate Commerce Facilities in the Commission of Murder-For-Hire (a) Base Offense Level (Apply the greater): (1) (2) 32. §2E1. 1990 (see Appendix C. the alternative minimum base offense level is to be used. § 1952B). – 192 – . 2B3. 1989 (see Appendix C. Commentary Statutory Provision: 18 U.C.4. amendment 311). 1987.§2E1.5 (Hobbs Act Extortion or Robbery). §2E1.1. 2B3. Amended effective November 1.3 GUIDELINES MANUAL November 1.5. 1993 (see Appendix C. amendment 449).C. 1987. § 1958 (formerly 18 U. 1987. Historical Note: Effective November 1.. [Deleted] Historical Note: Section 2E1. Background: This guideline and the statute to which it applies do not require that a murder actually have been committed.2.S.3. effective November 1.C. Application Note: 1. 2. Background: The conduct covered under this section ranges from threats to murder. the offense level corresponding to the most analogous federal offense is to be used. amendment 144).1 effective November 1. November 1. Application Notes: 1. Amended effective November 1. 12).e. The maximum term of imprisonment authorized by statute ranges from three years to life imprisonment.S. amendment 145). 1992 (see Appendix C. amendment 481).C.S. 2009 Commentary Statutory Provision: 18 U. If the offense level for the underlying conduct is less than the alternative minimum base offense level specified (i. November 1.

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

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

1301-1304.3 (Other Gambling Offenses). November 1.S. [Deleted] Historical Note: Section 2E3.1. 1953. maiming or death to an animal. 1987. 1955. 1987.3. Application Notes: 1. Amended effective November 1. if the offense involved an animal fighting venture. [Deleted] Historical Note: Section 2E3.S. was deleted by consolidation with §2E3.2. amendment 481). * * * * * – 195 – .S. see Appendix A (Statutory Index). Upward Departure Provision. § 5363. 2008 (see Appendix C. (2) (3) Commentary Statutory Provisions: 7 U. §2E3. Animal Fighting Offenses (a) Base Offense Level: (Apply the greatest) (1) 12. amendment 703). otherwise.C. 1306. 1993 (see Appendix C. § 2156. if the offense was (A) engaging in a gambling business.1 effective November 1.C. §§ 1172-1175. 1993 (see Appendix C. § 2156(g).—For purposes of this guideline: "Animal fighting venture" has the meaning given that term in 7 U. November 1. was deleted by consolidation with §2E3. 2.C. Definition. 2007 (see Appendix C. amendment 721). 1993 (see Appendix C. 31 U.S. for example.3 §2E3. or (C) committed as part of. amendment 481).—If the offense involved extraordinary cruelty to an animal that resulted in. (B) transmission of wagering information.2 (Transmission of Wagering Information). or 10. For additional statutory provision(s).C. effective November 1. a commercial gambling operation. 2009 GUIDELINES MANUAL §2E3. 15 U.C. §§ 1082. amendment 481). Gambling Offenses. 1987. an upward departure may be warranted.November 1. Historical Note: Effective November 1. effective November 1.S. or 6. 1511. 18 U. §2E3.1 effective November 1. or to facilitate.

November 1. 1987. Amended effective November 1. and fraud in this subpart generally correspond to similar conduct under other parts of the guidelines. amendment 700).§2E4. The base offense levels for bribery and graft have been set higher than the level for commercial – 196 – . At least 10. 2007 (see Appendix C. LABOR RACKETEERING Introductory Commentary The statutes included in this subpart protect the rights of employees under the Taft-Hartley Act. Because this offense is basically a tax matter. 2344(a). §§ 2342(a). Application Note: 1. §2E4. Background: The conduct covered by this section generally involves evasion of state and local excise taxes.1 (Tax Table) corresponding to the amount of the tax evaded. 2007 (see Appendix C.C. Thus. 2008 (see Appendix C. the base offense levels for bribery. it is graded by use of the tax table in §2T4. 2009 TRAFFICKING IN CONTRABAND CIGARETTES AND SMOKELESS TOBACCO Historical Note: Effective November 1. members of labor organizations under the Labor-Management Reporting and Disclosure Act of 1959. "Tax evaded" refers to state and local excise taxes. and participants of employee pension and welfare benefit plans covered under the Employee Retirement Income Security Act.S. theft.000 cigarettes must be involved.1 4. or the offense level from the table in §2T4. The base offense levels for many of the offenses in this subpart have been determined by reference to analogous sections of the guidelines. Amended effective November 1.1. Unlawful Conduct Relating to Contraband Cigarettes and Smokeless Tobacco (a) Base Offense Level (Apply the greater): (1) (2) 9. GUIDELINES MANUAL November 1. * * * * * 5. 1987. Historical Note: Effective November 1.1. amendment 700). amendment 724). Commentary Statutory Provisions: 18 U.

increase by 2 levels.000.S.000 but did not exceed $5. "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. if a bribe. Offering. Application Notes: 1. whichever is greater (A) exceeded $2.000. Historical Note: Effective November 1. or (B) exceeded $5.4 (Base Fine). If the value of the prohibited payment or the value of the improper benefit to the payer. 1987. 2009 GUIDELINES MANUAL §2E5. or Labor Organizations (a) Base Offense Level: (1) (2) (b) 10. increase by the number of levels from the table in §2B1.November 1. (2) (c) Special Instruction for Fines .1 bribery due to the particular vulnerability to exploitation of the organizations covered by this subpart. §2E5.S. and Fraud) corresponding to that amount. the value of the benefit received or to be received in return for the unlawful payment. – 197 – . if a gratuity. (B) if a bribe. or Soliciting a Bribe or Gratuity Affecting the Operation of an Employee Welfare or Pension Benefit Plan. increase by 1 level. use the greatest of: (A) the value of the unlawful payment. 29 U. Representatives. Property Destruction.C. Specific Offense Characteristics (1) If the defendant was a fiduciary of the benefit plan or labor organization. Accepting. or 6.1. Prohibited Payments or Lending of Money by Employer or Agent to Employees. Commentary Statutory Provisions: 18 U.C.1 (Theft. § 1954. or (C) if a bribe. the consequential damages resulting from the unlawful payment.Organizations (1) In lieu of the pecuniary loss under subsection (a)(3) of §8C2. § 186.

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

amendment 153). §§ 1027. 1989 (see Appendix C. amendment 29) and November 1. amendment 647). Amended effective November 1. 1987. 2009 GUIDELINES MANUAL §2E5. 461. or Labor Organizations). or §2J1. January 25. November 1.6 (Prohibited Payments or Lending of Money by Employer or Agent to Employees. amendment 653). the offense level is determined by reference to the offense facilitated by the false statements or documents.S. 1520.6 an Employee Welfare or Pension Benefit Plan. – 199 – . [Deleted] Historical Note: Section 2E5. amendment 481). 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. [Deleted] Historical Note: Section 2E5. amendment 151). see Appendix A (Statutory Index). was deleted by consolidation with §2E5.3 effective November 1.1 effective November 1. Such violations sometimes occur in connection with the criminal conversion of plan funds or schemes involving bribery or graft. amendment 152). 1993 (see Appendix C. effective November 1. amendment 422). amendment 481). §2E5. as applicable. Appendix C. 1993 (see Appendix C. Commentary Statutory Provisions: 18 U. 1993 (see Appendix C. 1989 (see Appendix C. 29 U. 2003 (see.6. Historical Note: Effective November 1. amendment 481). 1989 (see Appendix C. It also covers failure to maintain proper documents required by the LMRDA or falsification of such documents. 1987. November 1. amended effective June 15. §2E5. Representatives. amended effective November 1.November 1.5. 2003 (see Appendix C.5 (Failure to Maintain and Falsification of Records Required by the Labor Management Reporting and Disclosure Act).1 effective November 1. For additional statutory provision(s).4 (Embezzlement or Theft from Labor Unions in the Private Sector). [Deleted] Historical Note: Section 2E5. amendment 481).S. 1987.C. Representatives. 1991 (see Appendix C. §2E5. 1131. 1987. 1988 (see Appendix C. §§ 439. amended effective November 1. was deleted by consolidation with §2E5. Where a violation under this section occurs in connection with another offense.C. effective November 1. was deleted by consolidation with §2B1. effective November 1.2 (Obstruction of Justice). or Labor Organizations).4. 1993 (see Appendix C.

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

§ 1328 (only if the offense involved a victim other than a minor). 2000 (see Appendix C.S. 2002 (see Appendix C. November 1. Promoting a Commercial Sex Act or Prohibited Sexual Conduct with an Individual Other than a Minor (a) Base Offense Level: (1) (2) (b) 34. Specific Offense Characteristic (1) If (A) subsection (a)(2) applies. 2009 GUIDELINES MANUAL §2G1.C. apply §2A3. AND OBSCENITY Historical Note: Effective November 1. PROMOTING A COMMERCIAL SEX ACT OR PROHIBITED SEXUAL CONDUCT Historical Note: Effective November 1. SEXUAL EXPLOITATION OF MINORS.S. 2002 (see Appendix C. 2422(a) (only if the offense involved a victim other than a minor). – 201 – . 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. 18 U.C. Attempt to Commit Criminal Sexual Abuse). Commentary Statutory Provisions: 8 U. (c) Cross Reference (1) If the offense involved conduct described in 18 U. or 14. (d) Special Instruction (1) If the offense involved more than one victim.S. 2421 (only if the offense involved a victim other than a minor).OFFENSES INVOLVING COMMERCIAL SEX ACTS. §§ 1591 (only if the offense involved a victim other than a minor).1 (Criminal Sexual Abuse.November 1.C. Chapter Three. otherwise.C. amendment 641). and (B) the offense involved fraud or coercion. Amended effective November 1. amendment 641). §2G1. if the offense of conviction is 18 U. amendment 592). § 2242. increase by 4 levels. Amended effective November 1.S. 1.1 PART G .C. § 2241(a) or (b) or 18 U.1. § 1591(b)(1). 1987.S. 1987.

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

amendment 538). 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. 1989 (see Appendix C. § 2422(b) or § 2423(a). 1992 (see Appendix C. or kidnapping). effective November 1.C. a commercial sex act or prohibited sexual conduct is to be treated as a separate victim. 2002 (see Appendix C. 30. amendment 664). May 1.S. In addition.—For the purposes of Chapter Three.S. amendments 157 and 158). November 1. Upward Departure Provision. or (ii) engaging in. 2000 (see Appendix C.C. November 1. 1996 (see Appendix C. 1991 (see Appendix C. amendment 323). or communicating unwillingness to engage in.1 effective November 1. or travel to engage in. 1996 (see Appendix C. otherwise. Use of Interstate Facilities to Transport Information about a Minor (a) Base Offense Level: (1) (2) (3) 34. [Deleted] Historical Note: Section 2G1. amendment 627). November 1. persuaded. 2009 GUIDELINES MANUAL §2G1. November 1. whether specifically cited in the count of conviction. §2G1. § 1591(b)(1). 5. or 24. November 1. November 1. amended effective November 1. 2001 (see Appendix C. Travel to Engage in Commercial Sex Act or Prohibited Sexual Conduct with a Minor. 1987. (4) – 203 – . each such victim shall be treated as if contained in a separate count of conviction. November 1. 1987. 2009 (see Appendix C.2 (Groups of Closely Related Counts). § 1591(b)(2). serious bodily injury. amendment 701).—If the offense involved more than ten victims. amendment 592). Part D (Multiple Counts). 2004 (see Appendix C.2. enticed. if the defendant was convicted under 18 U. Sex Trafficking of Children. 1989 (see Appendix C.2 (Transportation of a Minor for the Purpose of Prostitution or Prohibited Sexual Conduct).November 1. November 1. Consequently. or coerced to engage in. amendment 444). multiple counts involving more than one victim are not to be grouped together under §3D1. 1990 (see Appendix C. and November 1. induced. amendment 322). was deleted by consolidation with §2G1.C. Special Instruction at Subsection (d)(1). 2001 (see Appendix C. November 1. an upward departure may be warranted. if the defendant was convicted under 18 U. amendment 737). each person transported. amendment 612). 28.3. if the defendant was convicted under 18 U. Transportation of Minors to Engage in a Commercial Sex Act or Prohibited Sexual Conduct. 6. Historical Note: Effective November 1. 1990 (see Appendix C. amendment 538).S. Promoting a Commercial Sex Act or Prohibited Sexual Conduct with a Minor. November 1. Amended effective November 1. 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. amendments 159 and 160).3 than by threatening or placing the victim in fear that any person will be subject to death. 2007 (see Appendix C. amendment 400). amendment 641). §2G1. or causing another person to engage in. the sexual act.

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

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

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

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

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

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

(B) 4. coerce.—The enhancement in subsection (b)(6)(A) applies in cases involving the misrepresentation of a participant’s identity to persuade.1 GUIDELINES MANUAL November 1. Application of Subsection (b)(5). 3.3 (Abuse of Position of Trust or Use of Special Skill).—Subsection (b)(5) is intended to have broad application and includes offenses involving a minor entrusted to the defendant. the court should look to the actual relationship that existed between the defendant and the minor and not simply to the legal status of the defendant-minor relationship. if any dangerous weapon was used or brandished. 2009 "Minor" means (A) an individual who had not attained the age of 18 years.S. Application of Subsection (b)(6). – 210 – . baby-sitters. 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. § 2246(3). Application of Subsection (b)(2). or other temporary caretakers are among those who would be subject to this enhancement. serious bodily injury. or (iv) administering by force or threat of force.— (A) Misrepresentation of Participant’s Identity. whether temporarily or permanently. for example. This provision would apply. Subsection (b)(6)(A) is intended to apply only to misrepresentations made directly to a minor or to a person who exercises custody. who a law enforcement officer represented to a participant (i) had not attained the age of 18 years. and (ii) could be provided for the purposes of engaging in sexually explicit conduct.C. or facilitate the travel of. day care providers. Inapplicability of Chapter Three Adjustment. whether fictitious or not. or kidnapping. (B) an individual. teachers. do not apply §3B1. In determining whether to apply this adjustment. induce.S. care. intoxicant.—If the enhancement in subsection (b)(5) applies.— (A) In General. or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years. For example. 2. "Sexually explicit conduct" has the meaning given that term in 18 U.C. (ii) threatening or placing the minor in fear that any person will be subject to death. "Sexual act" has the meaning given that term in 18 U. § 2246(2). or without the knowledge or permission of the minor.C.§2G2. or supervisory control of the minor. Accordingly.S.S. or other similar substance and thereby substantially impairing the ability of the minor to appraise or control conduct. § 2241(a) or (b)" is: (i) using force against the minor. (iii) rendering the minor unconscious. or in a case in which the ability of the minor to appraise or control conduct was substantially impaired by drugs or alcohol. "Sexual contact" has the meaning given that term in 18 U. § 2256(2). 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.—For purposes of subsection (b)(2): "Conduct described in 18 U.C. a drug. entice.

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

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

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

Application of Subsection (b)(5). § 230(f)(2)). or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years.—"Images" means any visual depiction. as defined in 18 U. receipt. receive. as defined in 18 U. Application of Subsection (b)(7). § 2241. 2. If the number of 3. 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. "Material" includes a visual depiction.C.S. Part A (Criminal History). computer or computer-generated image. and (ii) could be provided for the purposes of engaging in sexually explicit conduct. "Prohibited sexual conduct" has the meaning given that term in Application Note 1 of the Commentary to §2A3. as defined in 18 U. (B) an offense under state law.C. Application of Subsection (b)(4). accessing with intent to view. § 2242.—For purposes of determining the number of images under subsection (b)(7): (i) Each photograph.—Subsection (b)(4) applies if the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence. or (C) resulted in a conviction for such conduct. "Minor" means (A) an individual who had not attained the age of 18 years. who a law enforcement officer represented to a participant (i) had not attained the age of 18 years. § 2251A.2 GUIDELINES MANUAL November 1. (B) – 214 – . "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. that constitutes child pornography. "Sexual abuse or exploitation" does not include possession. or (C) an attempt or conspiracy to commit any of the offenses under subdivisions (A) or (B). whether or not the abuse or exploitation (A) occurred during the course of the offense.S. § 2251(a)-(c). Determining the Number of Images. or trafficking in material relating to the sexual abuse or exploitation of a minor. "Sexual abuse or exploitation" means any of the following: (A) conduct described in 18 U.—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.§2G2. or distribute such materials. § 2256(8). § 2421. § 2243. § 2251(d)(1)(B). Attempt to Commit Criminal Sexual Abuse). 2009 "Interactive computer service" has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U. (B) involved the same minor. picture.S.C. § 2422.C. § 2256.C.— (A) Definition of "Images". or any similar visual depiction shall be considered to be one image.S. § 2256(5). (B) an individual. § 2260(b). whether fictitious or not.S. access with intent to view. regardless of whether the defendant specifically intended to possess. or § 2423. 4.1 (Criminal Sexual Abuse.

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

Amended effective November 27. Advertisement for Minors to Engage in Production). amendment 689). November 1. apply §2G2. 18 U. [Deleted] Historical Note: Effective November 1. advertising. 1989 (see Appendix C. 2003 (see Appendix C. was deleted by consolidation with §2G2. or offering or seeking by notice or advertisement. Recordkeeping Offenses Involving the Production of Sexually Explicit Materials. amendment 701).1 (Sexually Exploiting a Minor by Production of Sexually Explicit Visual or Printed Material. Historical Note: Effective November 1. Amended effective November 1. – 216 – .4. § 2251A is thirty years imprisonment. permitting. amendment 372). §§ 2257. 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. Advertising. 2000 (see Appendix C.2 effective November 1. (2) Commentary Statutory Provisions: 15 U. 2257A.C. Transporting. amendment 664).S. 2009 Statutory Provision: 18 U.S. 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. 1991 (see Appendix C. Custodian Permitting Minor to Engage in Sexually Explicit Conduct.C. Background: The statutory minimum sentence for a defendant convicted under 18 U. Receiving. 2004 (see Appendix C. or possessing material involving the sexual exploitation of a minor with intent to traffic). transporting.S. § 7704(d).C. Historical Note: Effective November 1.3 GUIDELINES MANUAL November 1. transporting. a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct. §2G2. Amended effective November 1. amendment 736). 1991 (see Appendix C. 2006 (see Appendix C. apply §2G2.C. amendment 372). November 1.2 (Trafficking in Material Involving the Sexual Exploitation of a Minor. amendment 592). § 2251A. November 1. amendment 162).§2G2. or Possessing Material Involving the Sexual Exploitation of a Minor with Intent to Traffic). §2G2. April 30. 2009 (see Appendix C. amendment 537).S.5. 1996 (see Appendix C. amendment 649). amendment 436). 1991 (see Appendix C. 2007 (see Appendix C.

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

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

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

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

2009 GUIDELINES MANUAL §2G3. 1989 (see Appendix C.C. Property Destruction. and Fraud) corresponding to the volume of commerce attributable to the defendant is greater than the offense level determined above. Mailing. amendment 164). amendment 164). 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. 1987. Transferring Obscene Matter to a Minor). November 1.2 §2G3. or Transporting Obscene Matter. §§ 1464. § 223(b)(1)(A). or if a broadcast was made between six o’clock in the morning and eleven o’clock at night. amendment 592). 1989 (see Appendix C. Historical Note: Effective November 1.1 (Theft. Amended effective November 1. If 6 plus the offense level from the table in §2B1. 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. 1468. 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.C. Obscene Telephone Communications for a Commercial Purpose. amendment 617). increase by 4 levels. effective November 1.S.S. (2) Commentary Statutory Provisions: 18 U. A former §2G3. The extent to which the obscene material was distributed is approximated by the volume of commerce attributable to the defendant. 2001 (see Appendix C. increase to that offense level.2 (Obscene or Indecent Telephone Communications). 2000 (see Appendix C.1 (Importing. was deleted effective November 1.November 1.2. – 221 – .

Commentary Statutory Provisions: 18 U. 10.OFFENSES INVOLVING INDIVIDUAL RIGHTS 1. Part H. §§ 241. 246. or one instance of assault and one instance of arson). 247.1 GUIDELINES MANUAL November 1. 42 U.. (2) (3) (4) (b) Specific Offense Characteristic (1) If (A) the defendant was a public official at the time of the offense. two instances of assault. 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. if the offense involved (A) the use or threat of force against a person.2 (Applicable Guidelines). 245(b). 2009 PART H . and (iii) compare each of the Chapter Two offense levels determined above with the alternative base offense level under subsection – 222 – . § 3631. See Application Note 4 of §1B1.g. and special instructions) for each such underlying offense. 248. specific offense characteristics. or (B) property damage or the threat of property damage. increase by 6 levels. state. or local law (other than an offense that is itself covered under Chapter Two. Offenses Involving Individual Rights (a) Base Offense Level (Apply the Greatest): (1) the offense level from the offense guideline applicable to any underlying offense.e. effective November 1.C. cross references. "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. §2H1. conduct set forth in the count of conviction may constitute more than one underlying offense (e. In certain cases.S. otherwise. or 6. if the offense involved two or more participants. was deleted effective November 1. Subpart 1). amendment 521).S.C. or (B) the offense was committed under color of law. 1987. 1091. 1995 (see Appendix C. In such cases. Application Notes: 1.§2H1.1. 12. the base offense level. (ii) determine the Chapter Two offense level (i. Subpart 1. 242. CIVIL RIGHTS Historical Note: Introductory Commentary to Part H..

1989 (see Appendix C. gender. See §3A1.e. however. an additional 3-level enhancement from §3A1. amended effective November 1. 1990 (see Appendix C.4. 1989 (see Appendix C. amendment 327). 1995 (see Appendix C. or to the Chapter Two offense levels for each of the underlying offenses.1(a) will not apply. 1991 (see Appendix C. effective November 1. 2. [Deleted] Historical Note: Section 2H1. do not apply §3B1.1(c). If subsection (b)(1) applies. amendments 313 and 327). amendment 591).. 2009 GUIDELINES MANUAL §2H1. November 1. was deleted by consolidation with §2H1. national origin. or sexual orientation of any person. amendment 521). amendment 521).1 effective November 1.4 (a)(2).1(b) applies. amendment 165). If the finder of fact at trial or. November 1.1 effective November 1.2. [Deleted] Historical Note: Section 2H1. religion. An adjustment from §3A1. Damage to Religious Real Property). effective November 1. effective November 1.1 effective November 1. Otherwise. 1987. November 1. 1990 (see Appendix C. amendment 303). disability.3. 1995 (see Appendix C. 1987.3 (Use of Force or Threat of Force to Deny Benefits or Rights in Furtherance of Discrimination. was deleted by consolidation with §2H1. 3. if a 6-level adjustment from §2H1. color. – 223 – . 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). "Participant" is defined in the Commentary to §3B1. amended effective November 1. §2H1. 1989 (see Appendix C. was deleted by consolidation with §2H1. 2000 (see Appendix C.2 (Conspiracy to Interfere with Civil Rights). [Deleted] Historical Note: Section 2H1. the conduct taken as a whole). 5. 1987.3 (Abuse of Position of Trust or Use of Special Skill). as appropriate. Amended effective November 1. 1987. in the case of a plea of guilty or nolo contendere. amendment 521). §2H1.4 (Interference with Civil Rights Under Color of Law).November 1. 4. 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). ethnicity. 1989 (see Appendix C. Use the alternative base offense level only if it is greater than each of the Chapter Two offense levels determined above. 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. amended effective November 1. or (4). November 1. amendment 166). §2H1. 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. amendment 303). 1995 (see Appendix C. Historical Note: Effective November 1.1 (Aggravating Role). amendment 430). Then apply subsection (b) to the alternative base offense level. (3).

amendment 328). For additional statutory provision(s). refrain from voting. 1987. November 1. 2009 Historical Note: Section 2H1. Part B (Role in the Offense). demanded. Application Note: 1. or 6. November 1. 597. 1990 (see Appendix C. Amended effective November 1. or register to vote. amendment 661). 245(b)(1)(A). [Deleted] GUIDELINES MANUAL November 1. or agreed to accept anything of value to vote. 2003 (see Appendix C. 1015(f). by deceptive or dishonest conduct.5 (Other Deprivations of Rights or Benefits in Furtherance of Discrimination). deceit. or by bribery. 42 U. see Appendix A (Statutory Index). 593. * * * * * 2. vote for or against a particular candidate. Part K (Departures). Background: Alternative base offense levels cover three major ways of obstructing an election: by force. 1987. Obstructing an Election or Registration (a) Base Offense Level (Apply the greatest): (1) 18.C.1 effective November 1. 592. 242. or involved corrupting a public official. POLITICAL RIGHTS §2H2. amendment 168).§2H1. 1973j(a). If the offense resulted in bodily injury or significant property damage. 1989 (see Appendix C. or other means. (b). fraud. amendment 534).5 §2H1. accepted.S. except as provided in (3) below. effective November 1. See Chapter Five. 594. (2) (3) Commentary Statutory Provisions: 18 U. was deleted by consolidation with §2H1. 1995 (see Appendix C. if the defendant (A) solicited.S. 1989 (see Appendix C. Historical Note: Effective November 1. (B) gave false information to establish eligibility to vote. or (C) voted more than once in a federal election. or 12. an upward departure may be warranted. bribery. theft. amended effective November 1. if the obstruction occurred by forgery. amendment 521).5.C. A defendant who is a public official or who directs others to engage in criminal conduct is subject to an enhancement from Chapter Three.1. – 224 – . §§ 1973i. 1995 (see Appendix C. §§ 241. amendment 167) and November 1. if the obstruction occurred by use of force or threat of force against person(s) or property.

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

§2H3.1

GUIDELINES MANUAL

November 1, 2009

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

3.

4.

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§2H3.3

(B)

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

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

§2H3.2.

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

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

§2H3.3.

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

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

* * * * *

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§2H4.1
4.

GUIDELINES MANUAL

November 1, 2009

PEONAGE, INVOLUNTARY SERVITUDE, SLAVE TRADE, AND CHILD SOLDIERS

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

§2H4.1.

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

(b)

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

(2)

(3)

(4)

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

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

3.

4.

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

§2H4.2.

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

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

(2)

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

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§2H4.2
Application Notes: 1.

GUIDELINES MANUAL

November 1, 2009

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

2.

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

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§2J1.2

PART J - OFFENSES INVOLVING THE ADMINISTRATION OF JUSTICE

§2J1.1.

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

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

2.

3.

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

§2J1.2.

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

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§2J1.2
(1)

GUIDELINES MANUAL

November 1, 2009

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

(B)

(C)

(2)

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

(3)

(c)

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

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

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November 1, 2009

GUIDELINES MANUAL

§2J1.2

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

(B)

3.

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

4.

5.

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

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§2J1.2

GUIDELINES MANUAL

November 1, 2009

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

§2J1.3.

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

(2)

(c)

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

(d)

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

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

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November 1, 2009

GUIDELINES MANUAL

§2J1.4

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

2.

3.

4.

5.

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

§2J1.4.

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

(c)

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

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§2J1.4

GUIDELINES MANUAL

November 1, 2009

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

§2J1.5.

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

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

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

2.

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

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Application Notes: 1. decrease by 2 levels. 2. or punishable by a term of imprisonment of five years or more. otherwise. or local offense punishable by a term of imprisonment of one year or more. if the offense constituted a failure to report for service of sentence. or 6.6." or similar facility. that this reduction shall not apply if the defendant. while away from the facility. Failure to Appear by Defendant (a) Base Offense Level: (1) 11. 2009 GUIDELINES MANUAL §2J1. or a felony punishable by a term of imprisonment of less than five years. and the underlying offense is -(A) punishable by death or imprisonment for a term of fifteen years or more. "Underlying offense" means the offense in respect to which the defendant failed to appear. – 237 – . increase by 3 levels. and subdivision (A) above does not apply.6 §2J1. or was ordered to report to a community corrections center. unless the defendant obstructed the investigation or trial of the failure to appear count. increase by 6 levels. and the defendant -(A) voluntarily surrendered within 96 hours of the time he was originally scheduled to report. decrease by 5 levels.November 1. (2) (b) Specific Offense Characteristics (1) If the base offense level is determined under subsection (a)(1). (2) If the base offense level is determined under subsection (a)(2). Part C (Obstruction) does not apply. Chapter Three. (B) (C) Commentary Statutory Provision: 18 U. For offenses covered under this section. committed any federal. § 3146(b)(1). but less than fifteen years.C. however. state. increase by 9 levels. "halfway house. community treatment center.S. (B) Provided.

GUIDELINES MANUAL November 1. 1987. Amended effective November 1. (n.1 (Obstruction of Justice) is made because of the operation of the rules set out in Application Note 3. 1991 (see Appendix C. § 3146(b)(2). the failure to appear is treated under §3C1.g. 2005 (see Appendix C. amendment 329). 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. where the offense constituted a failure to report for service of sentence). However.§2J1.3(a). consecutive punishment for the failure to appear count.6 3. 5.1 (Obstructing or Impeding the Administration of Justice) as an obstruction of the underlying offense. Historical Note: Effective November 1. other than a case of failure to appear for service of sentence.. – 238 – . and the failure to appear count and the count or counts for the underlying offense are grouped together under §3D1. 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. In such cases. 1990 (see Appendix C. the grouping rules of §§3D1. perjury) during the investigation.C. as required by 18 U. 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. November 1.S.S.S.5 apply.1-3D1.1). The upward departure will ensure an enhanced sentence for obstructive conduct for which no adjustment under §3C1. Therefore. 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. Where the base offense level is determined under subsection (a)(2). amendment 680). (Note that 18 U. For example. and the defendant committed additional acts of obstructive behavior (e.2 (Sentencing on Multiple Counts of Conviction) and 18 U. unlike a count in which the statute mandates both a minimum and a consecutive sentence of imprisonment. comment.2. § 3146(b)(2) does not require a sentence of imprisonment on a failure to appear count.1(b)(1). 1998 (see Appendix C. § 3146(b)(2). If a defendant is convicted of both the underlying offense and the failure to appear count. (n. although if a sentence of imprisonment on the failure to appear count is imposed. or sentencing of the instant offense. in the case of a conviction on both the underlying offense and the failure to appear. 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. The guideline range for the failure to appear count is to be determined independently and the grouping rules of §§3D1. an upward departure may be warranted. amendment 403).1). See §3D1. amendment 579).) 4.2(c). appeal. In some cases. the offense level increases in relation to the statutory maximum of the underlying offense. or surrender for service of sentence.e. comment.. November 1.C. failure to appear conduct has the effect of ensuring an incremental.5 do not apply. sentencing. amendment 636). prosecution. November 1.C. and §3D1. November 1. the statute requires that the sentence be imposed to run consecutively to any other sentence of imprisonment.) The combined sentence will then be constructed to provide a "total punishment" that satisfies the requirements both of §5G1. (Note that the combination of this instruction and increasing the offense level for the obstructive. Background: This section applies to a failure to appear by a defendant who was released pending trial.1-3D1. See §5G1. 2009 In the case of a failure to appear for service of sentence. 2001 (see Appendix C.

. 1991 (see Appendix C.3 effective November 1. [Deleted] Historical Note: Section 2J1. and to §3D1. amendment 32). Amended effective November 1. 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. 2006 (see Appendix C. Part C (Obstruction). 1988 (see Appendix C. 1989 (see Appendix C. Historical Note: Effective November 1. 1993 (see Appendix C. Background: This section applies to witness gratuities in federal proceedings. and November 1. 1987. § 201(c)(2). Application Notes: 1. was deleted by consolidation with §2J1. see the Commentary to Chapter Three. the offense with respect to which the payment was made). §2J1. November 1.S. (3). – 239 – . was deleted from Chapter Two and replaced by §3C1. increase by 4 levels. 1987. Amendment 684). §2J1. Chapter Three. Part C (Obstruction) does not apply unless the defendant obstructed the investigation or trial of the payment to witness count. November 1.e. 1987. amendment 401). 2. effective November 1. amended effective January 15. 2009 GUIDELINES MANUAL §2J1. [Deleted] Historical Note: Effective November 1.November 1. 1989 (see Appendix C. 1991 (see Appendix C.8. amendment 481). amendment 33). For offenses covered under this section.8 (Bribery of Witness).9 §2J1.2(c) (Groups of Closely Related Counts). amendment 431).3 effective November 1.7. November 1.9. amendment 179). Commentary Statutory Provisions: 18 U. Amended effective January 15. 1988 (see Appendix C. amendment 178). In the event that the defendant is convicted under this section as well as for the underlying offense (i. 1989 (see Appendix C. amendments 180 and 181).C.

Possession.S. 1991 (see Appendix C. amendment 481). 1991 (see Appendix C.2 (Improper Storage of Explosive Materials). Background: The above-referenced provisions are misdemeanors.§2K1. November 1.3. 844(b).1 effective November 1. or (B) knowingly distributed explosive materials to a prohibited person. §2K1. [Deleted] Historical Note: Section 2K1. (k). 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. imprisonment authorized by statute is one year. § 842(p)(2). if the defendant (A) was a prohibited person at the time the defendant committed the instant offense. 1993 (see Appendix C.S. 2009 PART K .1. 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. Improper Storage of Explosive Materials (a) Base Offense Level: 6 Commentary Statutory Provisions: 18 U. 16.1 GUIDELINES MANUAL November 1. §§ 842(j). amendment 404). 20. see Appendix A (Statutory Index). 1987.OFFENSES INVOLVING PUBLIC SAFETY 1. Prohibited Transactions Involving Explosive Materials (a) Base Offense Level (Apply the Greatest): (1) 24. Amended effective November 1. 1987.C. amendment 404). or Transportation of Explosive Materials. EXPLOSIVES AND ARSON §2K1. For additional statutory provision(s). if the defendant was convicted under 18 U. §2K1. 1993 (see Appendix C. The maximum term of Historical Note: Effective November 1. Failure to Report Theft of Explosive Materials. amendment 481). amended effective November 1.2. Unlawful Receipt. was deleted by consolidation with §2K1. or (2) (3) (4) – 240 – . effective November 1. 18.C.

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

a federal conviction for an offense committed prior to the defendant’s eighteenth birthday is an adult conviction if the defendant was expressly proceeded against as an adult).S. 5.1 (Application Instructions). See 18 U.C. § 5685. 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.S. "Crime of violence" has the meaning given that term in §4B1.S. For example. count only those explosive materials that were unlawfully sought to be obtained.1 (Unlawful Receipt.C.. unlawfully 2. – 242 – . Application Notes: 1.S.2. apply §2K2. Where the conduct charged in the count of which the defendant was convicted establishes that the offense involved a destructive device. 6. § 842(i). For purposes of calculating the weight of explosive materials under subsection (b)(1).§2K1.C. or conviction obtained. defined in the Commentary to §1B1.3 GUIDELINES MANUAL November 1.S. (i). A conviction for an offense committed at age eighteen years or older is an adult conviction. For purposes of this guideline: "Controlled substance offense" has the meaning given that term in §4B1. state. and detonators. whether or not a criminal charge was brought. 2009 Commentary Statutory Provisions: 18 U. the paper and fuse on a stick of dynamite would be included. may contain explosive materials. the box that the dynamite was shipped in would not be included." as used in subsection (b)(3). regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed.2(a) and Application Note 1 of the Commentary to §4B1. or local) punishable by imprisonment for a term exceeding one year. blasting agents. 844(d). 2283. §§ 842(a)-(e). § 841(c). A destructive device.1). "Felony offense. (h). Prohibited Transactions Involving Firearms or Ammunition) if the resulting offense level is greater. § 844(j). For purposes of calculating the weight of explosive materials under subsection (b)(1). (p)(2).C. 4. For purposes of subsection (a)(4). (l)-(o). 3. 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.2(b) and Application Note 1 of the Commentary to §4B1. or Transportation of Firearms or Ammunition. means any offense (federal.2 (Definitions of Terms Used in Section 4B1. 1716.C. "Explosive material(s)" include explosives. Possession. Exclude the weight of any other shipping or packaging materials. (g). 26 U. "prohibited person" means any person described in 18 U.g. "Explosives" is defined at 18 U. "Felony conviction" means a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year.

As used in subsections (b)(3) and (c)(1). amendment 534). for purposes of subsection (c)(1)(A). use only those felony convictions that are counted separately under §4A1. amendment 568). November 1. 1992 (see. amendment 646). Under subsection (c)(1). November 1. (b). 1997 (see Appendix C.3).6 (Weapons and Dangerous Instrumentalities) may be warranted. 1995 (see Appendix C. 1991 (see Appendix C.November 1. or (c). November 1. the offense level for the underlying offense (which may be a federal. or (4) the offense posed a substantial risk of death or bodily injury to multiple individuals. 9. (n. under the most analogous guideline from Chapter Two... However.C. For purposes of applying subsection (a)(1) or (2). amendment 373). the defendant used or possessed a firearm to protect the delivery of an unlawful shipment of explosives). Historical Note: Effective November 1. plastic explosives).g. Part A (Criminal History). – 243 – . or (c). amendment 700). 2009 GUIDELINES MANUAL §2K1. November 1.S.g. Part A. 2007 (see Appendix C. Subpart 1 (Homicide). amendment 655). amendment 478). or unlawfully distributed. Appendix C. November 1. "that other offense" means. November 1. amendments 629 and 630). See §4A1.1(a). Amended effective November 1.S.1 (Attempt. including any explosive material that a defendant attempted to obtain by making a false statement. In addition. comment. "another felony offense" and "another offense" refer to offenses other than explosives or firearms possession or trafficking offenses. do not apply the adjustment in subsection (b)(2) because the base offense level itself takes such conduct into account. If the defendant is convicted under 18 U. 1989 (see Appendix C. state. amendment 471). §4A1. for purposes of applying subsection (a)(1). November 1. § 842(h) (offense involving stolen explosive materials). amendment 183).3 possessed. or (a)(4) are also counted for purposes of determining criminal history points pursuant to Chapter Four. (3) the defendant knowingly distributed explosive materials to a person under twenty-one years of age. (2) the explosive materials were of a nature more volatile or dangerous than dynamite or conventional powder explosives (e. and is convicted of no other offenses subject to this guideline. 2002 (see Appendix C. 1987. 7.2(a)(2). November 1. or Conspiracy) or. with respect to an offense under 18 U.2. (b). use only those felony convictions that receive criminal history points under §4A1. Prior felony conviction(s) resulting in an increased base offense level under subsection (a)(1). 2003 (see Appendix C. the underlying Federal crime of violence. Solicitation. An upward departure may be warranted in any of the following circumstances: (1) the quantity of explosive materials significantly exceeded 1000 pounds. or local offense) is to be determined under §2X1. 2001 (see Appendix C. Appendix C.1(a). 11. In addition.C. if death results. 8. 1993 (see. (a)(2). November 1. 10. an upward departure under §5K2. § 842(p)(2). where the defendant used or possessed a firearm or explosive to facilitate another firearms or explosives offense (e.

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

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

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

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

C. or (B) is convicted under 18 U.S.C. or the (i) offense involved a (I) semiautomatic firearm that is capable of accepting a large capacity magazine. or 6. (4) 20. 14.1 GUIDELINES MANUAL November 1. other than a defendant subject to subsection (a)(1).S. § 5845(a). (7) (8) (b) Specific Offense Characteristics (1) If the offense involved three or more firearms. if the offense involved a firearm described in 26 U.C. or a device for use in launching a portable rocket or a missile. (B) (5) (6) 18.C. and (ii) defendant (I) was a prohibited person at the time the defendant committed the instant offense. § 922(d). § 922(d). 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. § 922(c). If the defendant. (a)(4). or (x)(1). 2009 a crime of violence or a controlled substance offense. increase by 15 levels. or (II) is convicted under 18 U.§2K2. If the offense involved— (A) a destructive device that is a portable rocket.C. possessed all ammunition and firearms solely for lawful sporting purposes or collection. decrease the offense level determined above to level 6. except as provided below. (m). § 5845(a). or (II) firearm that is described in 26 U. if the defendant (A) was a prohibited person at the time the defendant committed the instant offense. (t). (a)(3). (s).S. 12. (a)(2).S. if the defendant is convicted under 18 U. 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. (e). and did not unlawfully discharge or otherwise unlawfully use such firearms or ammunition.S. (f). or (3) – 248 – . or (a)(5). a missile.

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

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

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

1(a). See §4B1. regardless of whether anything of value was exchanged. military type assault rifles. the offense level is increased to the offense level applicable to the sale of a firearm to a prohibited person). transfer. In addition.S. § 922(p)). (a)(2). (3) the offense involved large quantities of armor-piercing ammunition (defined at 18 U.g.S.2. (a)(4)(B). Armed Career Criminal.C. for purposes of applying subsection (a)(1) and (a)(2).C. use only those felony convictions that receive criminal history points under §4A1. Application of Subsection (b)(7).—An upward departure may be warranted in any of the following circumstances: (1) the number of firearms substantially exceeded 200. or (4)(A). Application of Subsection (b)(5). 9. 2009 defendant knew or had reason to believe that the firearm was stolen or had an altered or obliterated serial number. or received two or more firearms with the intent to transport. 10.1 GUIDELINES MANUAL November 1. Upward Departure Provisions. or (4) the offense posed a substantial risk of death or bodily injury to multiple individuals (see Application Note 7). and knew or had reason to believe that such conduct would result in the transport. § 924(e) is an Armed Career Criminal.C. 12. or otherwise dispose of firearms to another individual.1(a). Prior Felony Convictions. transfer. See §4A1. destructive devices). (a)(3). comment. § 921(a)(17)(B)).S. (ii) – 252 – .— Under subsection (b)(7). or who intended to use or dispose of the firearm unlawfully. the offense level is increased to the offense level for the substantive firearms or ammunition offense (e. or disposal of a firearm to an individual— (I) (II) whose possession or receipt of the firearm would be unlawful. (2) the offense involved multiple National Firearms Act weapons (e.4. 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. Part A (Criminal History). 13. or (c).g. or otherwise disposed of two or more firearms to another individual.3). (b). if the defendant falsifies a record to conceal the sale of a firearm to a prohibited person. machineguns. 11. Prior felony conviction(s) resulting in an increased base offense level under subsection (a)(1). (b). §4A1..—Subsection (b)(5) applies. (n.. if a record-keeping offense was committed to conceal a substantive firearms or ammunition offense.—A defendant who is subject to an enhanced sentence under the provisions of 18 U. or (c).2(a)(2). (a)(4)(A). (3).— (A) In General. if the defendant— (i) transported.—For purposes of applying subsection (a)(1). transferred. non-detectable ("plastic") firearms (defined at 18 U. (2).§2K2.

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

[Deleted] Historical Note: Section 2K2. 1989 (see Appendix C.1 effective November 1. 1997 (see Appendix C. amendments 679 and 680). and November 1. state. 1998 (see Appendix C. Use of Firearm.2 (Unlawful Trafficking and Other Prohibited Transactions Involving Firearms). 2006 (see Appendix C. November 1. 2004 (see Appendix C. amendments 578 and 586). or With Knowledge that It Will Be Used in Committing Another Offense). amendment 669). and 696).3. §2K2. effective November 1.2 effective November 1. regardless of whether a criminal charge was brought. amendment 189). 1993 (see Appendix C. 1992 (see Appendix C. §2K2.4.2. A former §2K2. effective November 1. the guideline sentence is the minimum term of imprisonment required by statute. November 1. November 1. Except as provided in subsection (c). was deleted by consolidation with §2K2. the defendant used or possessed a firearm to protect the delivery of an unlawful shipment of explosives). November 1. or local offense. 691. an upward departure under §5K2. November 1. 1989 (see Appendix C. was convicted of violating section 924(c) or section 929(a) of title 18. or a conviction obtained. effective November 1. November 1. Historical Note: Effective November 1. November 1. November 1.g. whether or not convicted of another crime. was convicted of violating section 844(h) of title 18.. amendment 522).6 (Weapons and Dangerous Instrumentalities) may be warranted. November 1. means any federal. 1991 (see Appendix C. amendment 646). amended effective January 15. amendment 374). was deleted by consolidation with §2K2. amendment 478). amendment 471). amendment 189).1 GUIDELINES MANUAL November 1. 1991 (see Appendix C. November 1. 1989 (see Appendix C.1 effective November 1. amendment 374). if the defendant. 2007 (see Appendix C. November 1. United States Code. United States Code.3 (Prohibited Transactions in or Shipment of Firearms and Other Weapons). Transporting. 2000 (see Appendix C. 2001 (see Appendix C. was deleted by consolidation with §2K2. amendment 189). 1991 (see Appendix C. 2009 "Another offense". November 1. 1988 (see Appendix C. [Deleted] Historical Note: Section 2K2. 1987. November 1. 1995 (see Appendix C. Chapters Three and Four shall not apply to that count of conviction. Shipping or Transferring a Firearm or Ammunition With Intent to Commit Another Offense. Armor-Piercing Ammunition. whether or not convicted of another crime. §2K2. (b) – 254 – . amendment 707). amendment 333). Amended effective November 1. 1989 (see Appendix C. amendment 34).3 (Receiving. amendment 374). other than the explosive or firearms possession or trafficking offense. amendment 605). November 1. amendment 189). amendment 333). amendments 686. November 1. 2002 (see Appendix C. amendments 568 and 575).—In a case in which the defendant used or possessed a firearm or explosive to facilitate another firearms or explosives offense (e. 1990 (see Appendix C. Chapters Three (Adjustments) and Four (Criminal History and Criminal Livelihood) shall not apply to that count of conviction. or Explosive During or in Relation to Certain Crimes (a) If the defendant. for purposes of subsection (c)(1). 1990 (see Appendix C. 2005 (see Appendix C. the guideline sentence is the term of imprisonment required by statute. amendments 629-631). 1987. 1987.§2K2. (D) Upward Departure Provision.

is determined to be a career offender under §4B1. 4B1. provide mandatory minimum terms of imprisonment (e. §§ 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. 2009 GUIDELINES MANUAL §2K2.S.— (A) In General. A departure may be warranted.1. Application of Subsection (a). Section 844(h) of title 18.g. § 924(c) or § 929(a) offense but is not determined to be a career offender under §4B1.C.1.2 (Definitions of Terms Used in Section 4B1.C. §§ 844(h). (d) Commentary Statutory Provisions: 18 U.S.S. This guideline shall be used as a consolidated fine guideline for both the underlying offense and the conviction underlying this section. United States Code. to reflect the seriousness of the defendant’s criminal history in a case in which the defendant is convicted of an 18 U. and (2) as a result of that conviction (alone or in addition to another offense of conviction).—Sections 924(c) and 929(a) of title 18. not less than five years). the guideline sentence is the minimum term required by the relevant statute. the guideline sentence shall be determined under §4B1. (B) – 255 – .C. a sentence above the minimum term required by 18 U. Each of 18 U. Accordingly.November 1. United State Code. § 924(c) or § 929(a). Upward Departure Provision.S.—Section 844(h) of title 18. 924(c).C. in a case in which the defendant is convicted under 18 U.4 (c) If the defendant (1) was convicted of violating section 924(c) or section 929(a) of title 18.—In a case in which the guideline sentence is determined under subsection (b). Except for §§3E1. § 844(h) is the term required by that statute. United States Code. 929(a). Application Notes: 1. the fine guideline shall be the fine guideline that would have been applicable had there only been a conviction for the underlying offense.1 (Career Offender). and 4B1.1). the guideline sentence for a defendant convicted under 18 U. United State Code. § 924(c) or § 929(a) is an upward departure from the guideline sentence.C. Application of Subsection (b).1(c). Chapters Three and Four shall not apply to that count of conviction.1 (Acceptance of Responsibility).S. provides a mandatory term of imprisonment of 10 years (or 20 years for the second or subsequent offense). 2. also requires a term of imprisonment imposed under this section to run consecutively to any other term of imprisonment.C. Except as provided in subsection (c). for example. Special Instructions for Fines (1) Where there is a federal conviction for the underlying offense.S..

S. or § 929(a) (i. use. However. the sentence shall be imposed according to the rules in subsection (e) of §5G1.S. § 844(h).S.S. the defendant possessed a firearm other than the one for which the defendant was convicted under 18 U..1(c). If the explosive or weapon that was possessed. the guideline sentence shall be determined under §4B1. Weapon Enhancement.C. or (B) in an ongoing drug trafficking offense. do not apply that enhancement. including any such enhancement that would apply based on conduct for which the defendant is accountable under §1B1.C. – 256 – . § 844(h).— If a sentence under this guideline is imposed in conjunction with a sentence for an underlying offense. a weapon enhancement would apply to the bank robbery which was not the basis for the 18 U.S.S. 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. § 929(a).S. § 924(c).C. 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.S.C. when combined with the mandatory consecutive sentence under 18 U.C. § 844(h). § 844(h). but is convicted under 18 U. or discharge of an explosive or firearm when determining the sentence for the underlying offense. brandished.S.C. A sentence under this guideline accounts for any explosive or weapon enhancement for the underlying offense of conviction. 2009 Application of Subsection (c). In a few cases in which the defendant is determined not to be a career offender. 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. § 924(c). 4.4 3. § 924(c).C.e. or § 929(a) does not result in a decrease in the total punishment.3(b)(3) (pertaining to possession of explosive material in connection with another felony offense) or §2K2. § 844(h).C. § 924(c) or 18 U. the offense level for the underlying offense determined under the preceding paragraphs may result in a guideline range that.1(b)(6) would not apply. In such a case. § 924(c) or § 929(a). if (A) a co-defendant.1(b)(6) (pertaining to possession of any firearm or ammunition in connection with another felony offense). 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. or discharge of a firearm had been applied). for example. used.C. or discharged in the course of the underlying offense also results in a conviction that would subject the defendant to an enhancement under §2K1. or § 929(a).C. the defendant was convicted of being a felon in possession under 18 U. § 924(c) in connection with only one of the robberies.S. an upward departure may be warranted so that the conviction under 18 U. § 922(g).C.—In a case in which the defendant (A) was convicted of violating 18 U. if in addition to a conviction for an underlying offense of armed bank robbery. In a case involving multiple counts.§2K2.C. Do not apply any weapon enhancement in the guideline for the underlying offense. as part of the jointly undertaken criminal activity. is determined to be a career offender under §4B1. § 924(c). if a defendant is convicted of two armed bank robberies. brandishing. use. § 924(c). GUIDELINES MANUAL November 1.2 (Sentencing on Multiple Counts of Conviction).S.S.1 (Career Offender).3 (Relevant Conduct). the guideline range that would have resulted if the enhancements for possession. or § 929(a). and (B) as a result of that conviction (alone or in addition to another offense of conviction). For example. the enhancement under §2K2. § 924(c) conviction. § 924(c).

A sentence imposed pursuant to any of these statutes must be imposed to run consecutively to any other term of imprisonment. amendment 190). November 1.1 (Procedure for Determining Offense Level on Multiple Counts) and 5G1. 599. do not apply Chapter Three (Adjustments) and Chapter Four (Criminal History and Criminal Livelihood) to any offense sentenced under this guideline. § 924(c). 2000 (see Appendix C. 1993 (see Appendix C. when a sentence under this section is imposed in conjunction with a sentence for an underlying offense.— Imposition of a term of supervised release is governed by the provisions of §5D1. November 1. § 844(h). Amended effective November 1. 1987.C. brandishing. United States Code. 1990 (see Appendix C. provide mandatory minimum terms of imprisonment.2. Terms of Supervised Release. and (B) no other adjustments in Chapter Three and no provisions of Chapter Four. or § 929(a) in that any specific offense characteristic for possession. Sections 924(c) and 929(a) of title 18. any specific offense characteristic for explosive or firearm discharge. Chapters Three and Four. amendment 332). § 844(h).— Subsection (d) sets forth special provisions concerning the imposition of fines. brandishing. The Commission has not established a fine guideline range for the unusual case in which there is no conviction for the underlying offense. and 600).S.1 and 4B1. November 1.S. November 1. amendments 481 and 489). 6. Such offenses are excluded from application of those chapters because the guideline sentence for each offense is determined only by the relevant statute. November 1.1(c). provides a mandatory term of imprisonment.November 1. Possession or Discharge of Firearm in School Zone (a) (b) Base Offense Level: 6 Specific Offense Characteristic (1) If -(A) the defendant unlawfully possessed or caused any firearm or dangerous weapon to be present in a federal court facility. Background: Section 844(h) of title 18. or – 257 – . or § 929(a). as provided in §4B1. Possession of Firearm or Dangerous Weapon in Federal Facility.C.1 (Acceptance of Responsibility) may apply. Historical Note: Effective November 1. amendment 405).5. 1989 (see Appendix C. use. This is required because the offense level for the underlying offense may be reduced when there is also a conviction under 18 U. although a fine is authorized under 18 U. November 1. See §§3D1. amendment 696).S. 2009 GUIDELINES MANUAL §2K2. 2002 (see Appendix C.2. 7. Where there is also a conviction for the underlying offense. To avoid double counting. or discharge of a firearm is not applied (see Application Note 4). or possession is not applied in respect to such underlying offense. use.5 5. other than §§4B1.—Except for those cases covered by subsection (c).C. amendment 642). 1991 (see Appendix C. shall apply. § 924(c). In determining the guideline sentence for those cases covered by subsection (c): (A) the adjustment in §3E1. Fines. a consolidated fine guideline is determined by the offense level that would have applied to the underlying offense absent a conviction under 18 U. §2K2.1 (Imposition of a Term of Supervised Release). § 3571. amendments 598. 2006 (see Appendix C. United States Code.

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

Historical Note: Effective November 1. counseled. "used" means the body armor was (i) actively employed in a manner to protect the person from gunfire. amendment 191). Meaning of "Felony Offense". For example.—For purposes of subsection (b)(1). – 259 – .—For purposes of subsection (b)(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. do not apply the adjustment in §3B1.—If subsection (b)(1) applies. in a federal facility. Inapplicability of §3B1. Application of Subsection (b)(1). Where the firearm was brandished. discharged.5 (Use of Body Armor in Drug Trafficking Crimes and Crimes of Violence). Purchasing.S. an upward departure may be warranted. 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. or willfully caused. the term "defendant". and the cross reference from subsection (c)(1) does not apply. procured.6. for purposes of subsection (b)(1). induced. Application Notes: 1.3 (Relevant Conduct). Meaning of "Used".November 1. "felony offense" means any offense (federal. 2003 (see Appendix C.C. Commentary Statutory Provision: 18 U. increase by 4 levels. November 1.— (A) Meaning of "Defendant". limits the accountability of the defendant to the defendant’s own conduct and conduct that the defendant aided or abetted. amendment 661).5. federal court facility. state. amendment 374). 1989 (see Appendix C. or (ii) used as a means of bartering.—Consistent with §1B1. §2K2. or a conviction obtained. or school zone. Amended effective November 1.6 4. or local) punishable by imprisonment for a term exceeding one year. or otherwise used. § 931. 1991 (see Appendix C. 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. regardless of whether a criminal charge was brought. commanded. 2009 GUIDELINES MANUAL §2K2. Subsection (b)(1) does not apply if the body armor was merely possessed. Possessing. (B) (C) 2. Grouping of Multiple Counts.

1993 (see Appendix C. Background: This guideline applies only to the felony provisions of 18 U. Historical Note: Effective November 1. Subpart 1 (Homicide).2. The Commission has not promulgated a guideline for the misdemeanor provisions of this statute. or If death resulted. apply the most analogous offense guideline from Chapter Two.1 (Attempt. amendment 334). or Conspiracy) in respect to the intended offense.2 effective November 1. §2K3. amendment 481). effective November 1. 1993 (see Appendix C. apply §2X1. Part A.§2K2.C. 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. 1987. (2) Commentary Statutory Provision: 18 U.1 (Unlawfully Transporting Hazardous Materials in Commerce). § 1716. or (B) to injure the mails or other property. [Deleted] Historical Note: Section 2K3.C. * * * * * 3. was deleted by consolidation with §2Q1.6 GUIDELINES MANUAL November 1. §2K3.S. MAILING INJURIOUS ARTICLES Historical Note: Effective November 1.1. § 1716 (felony provisions only). – 260 – . amendment 481).S. 1990 (see Appendix C. Solicitation. Amended effective November 1. the counts of conviction for the 18 U.2 (Groups of Closely Related Counts). 2004 (see Appendix C.S. amendment 670). § 931 offense and that other felony offense shall be grouped pursuant to subsection (c) of §3D1. 2009 includes a count of conviction for that other felony offense. Historical Note: Effective November 1. 1987.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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§2L1.1

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November 1, 2009

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

(C) 4.

Prior Convictions Under Subsection (b)(3).—Prior felony conviction(s) resulting in an adjustment under subsection (b)(3) are also counted for purposes of determining criminal history points pursuant to Chapter Four, Part A (Criminal History). Application of Subsection (b)(6).—Reckless conduct to which the adjustment from subsection (b)(6) applies includes a wide variety of conduct (e.g., transporting persons in the trunk or engine compartment of a motor vehicle, carrying substantially more passengers than the rated capacity of a motor vehicle or vessel, or harboring persons in a crowded, dangerous, or inhumane condition). If subsection (b)(6) applies solely on the basis of conduct related to fleeing from a law enforcement officer, do not apply an adjustment from §3C1.2 (Reckless Endangerment During Flight). Additionally, do not apply the adjustment in subsection (b)(6) if the only reckless conduct that created a substantial risk of death or serious bodily injury is conduct for which the defendant received an enhancement under subsection (b)(5). Inapplicability of §3A1.3.—If an enhancement under subsection (b)(8)(A) applies, do not apply §3A1.3 (Restraint of Victim).

5.

6.

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

§2L1.2.

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

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GUIDELINES MANUAL

§2L1.2

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

(C) (D) (E)

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

(ii)

(iii)

(iv)

(B)

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

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§2L1.2

GUIDELINES MANUAL

November 1, 2009

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

Immigration

and

Nationality

Act

(8

U.S.C.

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

(iii)

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

(iv)

(v)

(II)

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

(vi)

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

§2L1.2

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

(viii)

2.

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

3.

(B)

4.

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

(B)

5.

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

7.

§2L1.2

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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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November 1, 2009

GUIDELINES MANUAL

§2L2.4

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

2.

3.

4.

5.

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

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

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

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2009 Failure to Surrender Canceled Naturalization Certificate (a) Base Offense Level: 6 Commentary Statutory Provision: 18 U.5 §2L2.S.C.5. 1987. GUIDELINES MANUAL November 1. – 272 – .§2L2. Historical Note: Effective November 1. § 1428.

1987. including many of the more specific offenses in this Part. or Utilities (a) Base Offense Level: 32 Commentary Statutory Provisions: 18 U. Background: Treason is a rarely prosecuted offense that could encompass a relatively broad range of conduct. 1987. amendment 633). with reference made to the most analogous offense guideline in lesser cases.C. – 273 – . SABOTAGE §2M2.C. Historical Note: Effective November 1. Commentary Statutory Provision: 18 U. 42 U. TREASON §2M1. § 2153. 2154. 2001 (see Appendix C. 49 U. 2009 GUIDELINES MANUAL §2M2. Amended effective November 1. War Material.S. 1.1 PART M .S. or Production of Defective. Destruction of.S.OFFENSES INVOLVING NATIONAL DEFENSE AND WEAPONS OF MASS DESTRUCTION Historical Note: Effective November 1. Treason (a) Base Offense Level: (1) (2) 43. Premises.November 1. The guideline contemplates imposition of the maximum penalty in the most serious cases. if the conduct is tantamount to waging war against the United States.1.S. § 2381.1. otherwise. the offense level applicable to the most analogous offense. * * * * * 2.C. § 60123(b).C. § 2284.

1987.S. Premises. 2156. GUIDELINES MANUAL November 1.C. [Deleted] Historical Note: Section 2M2.4 (Production of Defective National Defense Material. amendment 481). Historical Note: Effective November 1.1 effective November 1.C. November 1. effective November 1. November 1. §§ 2155. §2M2. 49 U. Gathering or Transmitting National Defense Information to Aid a Foreign Government (a) Base Offense Level: – 274 – . effective November 1. Amended effective November 1. or Production of Defective.C.3 effective November 1. § 60123(b). §2M2. Destruction of. 1993 (see Appendix C.S. 42 U. or Utilities). 1993 (see Appendix C. 1993 (see Appendix C. or Utilities (a) Base Offense Level: 26 Commentary Statutory Provisions: 18 U. amendment 481).4. 2009 Violations of 42 U. Premises. ESPIONAGE AND RELATED OFFENSES §2M3. 2002 (see Appendix C. 1987. Historical Note: Effective November 1. National Defense Material. amendment 637). was deleted by consolidation with §2M2.1.3. 1987. * * * * * 3.C. § 2284. 1987. was deleted by consolidation with §2M2. Premises. amendment 481).S.S. [Deleted] Historical Note: Section 2M2. or Utilities). 2002 (see Appendix C. amendment 637). Application Note: 1. amendment 481). Violations of 42 U. Amended effective November 1. §2M2. § 2284 not included in §2M2. 1993 (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.1 are included in this section.S.§2M2.2.2 (Production of Defective War Material.C.1 Application Note: 1.

1987.C. 2. This classification. "Top secret information" is information that. 42 U. For additional statutory provision(s). § 794. if disclosed. See Chapter Five. and that the revelation will significantly and adversely affect security interests.2 (1) (2) 42.2.C. see Appendix A (Statutory Index). Commentary Statutory Provisions: 18 U. 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. Application Notes: 1. §§ 793(a). Application Notes: 1. Commentary Statutory Provisions: 18 U. if top secret information was gathered.S. in turn. (g). §2M3. – 275 – . See Commentary to §2M3. Part K (Departures).1. (b). (d). if top secret information was gathered or transmitted. When revelation is likely to cause little or no harm. reflects the importance of the information to the national security. Historical Note: Effective November 1. "reasonably could be expected to cause exceptionally grave damage to the national security." Executive Order 12356.November 1. (c). §§ 2274(a). (e). 1030(a)(1). Gathering National Defense Information (a) Base Offense Level: (1) (2) 35.S. a downward departure may be warranted. 2009 GUIDELINES MANUAL §2M3.C. 3. 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.S. 2275. or 30. otherwise. or 37. otherwise. (b). Background: Offense level distinctions in this subpart are generally based on the classification of the information gathered or transmitted.

Unauthorized Receipt of Classified Information (a) Base Offense Level: (1) (2) 29. 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. 2003 (see Appendix C. Historical Note: Effective November 1. Application Notes: 1.S. If the defendant was convicted of 18 U. – 276 – . otherwise.2. (e). photographic negative. See Commentary to §2M3. 798. amendment 481).3 may apply. blueprint. amendment 654). § 783(b). the unauthorized disclosure to a foreign government or a communist organization of classified information by a government employee. Unauthorized Disclosure to a Foreign Government or a Communist Organization of Classified Information by Government Employee.C. 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.S. or note relating to the national defense. instrument. 50 U. §§ 793(d). signal book.S. apply §2M3. sketch. Background: The statutes covered in this section proscribe willfully transmitting or communicating to a person not entitled to receive it a document. map. See Commentary to §2M3. Commentary Statutory Provisions: 18 U. § 793(d) or (e). § 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.C. Transmitting National Defense Information. 2.C. and the unauthorized receipt of classified information. 1987.1.2 2.S. Disclosure of Classified Cryptographic Information. photograph. writing. (g). Amended effective November 1. or 24. code book. plan. 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.C.3. (c).3. § 793(d) or (e). §2M3. Historical Note: Effective November 1. if top secret information. GUIDELINES MANUAL November 1. §2M3. 1993 (see Appendix C. 1987.C. appliance.§2M3. Amended effective November 1.S. model. 2009 If the defendant is convicted under 18 U.

Historical Note: Effective November 1.4.C.6 §2M3. 1987. or 13. §2M3. but rather the loss of classified information by the gross negligence of an employee of the federal government or a federal contractor. effective November 1. Background: Offenses prosecuted under this statute generally do not involve subversive conduct on behalf of a foreign power. Application Note: 1.6 (Disclosure of Classified Cryptographic Information). § 793(f). amendment 481).1. See Commentary to §2M3.6. §2M3.3 effective November 1. See Commentary to §2M3.1.S. Commentary Statutory Provision: 18 U. Historical Note: Effective November 1.November 1. Application Note: 1.S.5. if top secret information was lost. otherwise. 2009 GUIDELINES MANUAL §2M3. 1987. was deleted by consolidation with §2M3. – 277 – .C. Tampering with Restricted Data Concerning Atomic Energy (a) Base Offense Level: 24 Commentary Statutory Provision: 42 U. 1993 (see Appendix C. Losing National Defense Information (a) Base Offense Level: (1) (2) 18. § 2276. 1987. [Deleted] Historical Note: Section 2M3.

See Commentary to §2M3.3 effective November 1. including journalists.9. § 421.7 §2M3.S. 2001 (see Appendix C.C. (2) Commentary Statutory Provision: 50 U. § 421 by defendants. effective November 1. § 421 shall be imposed consecutively to any other term of imprisonment.1. 3. if the information was disclosed by a person with. Application Notes: 1. A term of imprisonment imposed for a conviction under 50 U.C.C. was deleted by consolidation with §2M3. or who had authorized access to classified information identifying a covert agent. was deleted by consolidation with §2M3. who disclosed such information without having or having had authorized access to classified information. See §2X5. This guideline applies only to violations of 50 U. [Deleted] Historical Note: Section 2M3.C. 1987. 1987.§2M3. Disclosure of Information Identifying a Covert Agent (a) Base Offense Level: (1) 30.S. § 421 by persons who have or previously had authorized access to classified information. Historical Note: Effective November 1. § 421 not covered by this guideline may vary in the degree of harm they inflict.7. amendment 481).1 (Other Offenses). Background: The alternative base offense levels reflect a statutory distinction by providing a greater base offense level for a violation of 50 U.8. 1993 (see Appendix C. This guideline does not apply to violations of 50 U.S.C. 2009 Historical Note: Section 2M3. effective November 1.C. – 278 – . Violations of 50 U.8 (Receipt of Classified Information). amendment 636). 2. [Deleted] GUIDELINES MANUAL November 1.S.C. This guideline does not apply to violations of 50 U. authorized access to classified information.3 effective November 1.S.7 (Unauthorized Disclosure to Foreign Government or a Communist Organization of Classified Information by Government Employee). or 25.S. and the court should impose a sentence that reflects such harm. or having had. §2M3. 1987. 1993 (see Appendix C. if the information was disclosed by a person with authorized access only to other classified information. § 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. §2M3.S. amendment 481). Amended effective November 1. § 421 by defendants who disclosed such information without having.

increase by 6 levels.1 * * * * * 4. * * * * * 5. Subsection (b)(1) does not distinguish between whether the offense was committed in peacetime or during time of war or armed conflict. amendment 336). Application Note: 1. § 462.1. EVASION OF MILITARY SERVICE §2M4. 1990 (see Appendix C. or chemical weapons or materials – 279 – .November 1. an upward departure may be warranted. Evasion of Export Controls. 2002 (see Appendix C. Amended effective November 1. Amended effective November 1. if (A) national security controls or controls relating to the proliferation of nuclear. PROHIBITED FINANCIAL TRANSACTIONS AND EXPORTS. App. amendment 637). Financial Transactions with Countries Supporting International Terrorism (a) Base Offense Level (Apply the greater): (1) 26. Commentary Statutory Provision: 50 U. If the offense was committed when persons were being inducted for compulsory military service during time of war or armed conflict. 1987. biological. §2M5. 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.1.S.C. AND PROVIDING MATERIAL SUPPORT TO DESIGNATED FOREIGN TERRORIST ORGANIZATIONS Historical Note: Effective November 1. 1987. 2009 GUIDELINES MANUAL §2M5. Historical Note: Effective November 1.

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

(C) explosives. November 1. missiles.1 (First Degree Murder) if the death was caused intentionally or knowingly.C. and certain firearms. Under 22 U. 2780. military and space electronics. 2007 (see Appendix C. Historical Note: Effective November 1. apply §2A1. Part K (Departures). Part 121. a departure from the guidelines may be warranted. (c) Cross References (1) If the offense resulted in death. (B) firearms. Included in this list are such things as military aircraft. 1987.2 (Second – 281 – . knowledge. The items subject to control constitute the United States Munitions List. § 2778.F. amendment 337).1. §2M5. (D) funds with the intent. or §2A1.S. through a licensing system administered by the Department of State. Providing Material Support or Resources to Designated Foreign Terrorist Organizations or Specially Designated Global Terrorists. See Chapter Five. or (E) funds or other material support or resources with the intent.S.3 Commentary Statutory Provisions: 18 U. shells. 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. artillery. to control exports of defense articles and defense services that he deems critical to a security or foreign policy interest of the United States. which is set out in 22 C. 1990 (see Appendix C. §§ 2778. vessels of war. explosives. the volume of commerce involved. In the unusual case where the offense conduct posed no such risk.C. and whether there were multiple occurrences.S. or reason to believe such funds would be used to purchase any of the items described in subdivisions (A) through (C). knowledge. the court may consider the degree to which the violation threatened a security or foreign policy interest of the United States.November 1. an upward departure may be warranted. the President is authorized. Amended effective November 1.C. In the case of a violation during time of war or armed conflict. 2009 GUIDELINES MANUAL §2M5.R. increase by 2 levels. a downward departure may be warranted. amendment 700). Where such factors are present in an extreme form. 2. In determining the sentence within the applicable guideline range. Application Notes: 1. helicopters. rockets. November 1. 22 U. § 554. bombs. 2001 (see Appendix C. the extent of planning or sophistication. amendment 633).3. or reason to believe they are to be used to commit or assist in the commission of a violent act. 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.

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

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

(b)(2).S. and (B) the offense resulted in (i) substantial disruption of public.1 (First Degree Murder) if the death was caused intentionally or knowingly.C. or (a)(4) applies. 2283.S. (ii) any victim sustained serious bodily injury. 175c. if the resulting offense level is greater than that determined above. or §2A1. 831. 175b. §§ 175. (3) If (A) subsection (a)(2). 2332h.S. 842(p)(2) (only with respect to weapons of mass destruction as defined in 18 U. 2122. or (ii) a substantial expenditure of funds to clean up. Application Notes: 1. increase by 4 levels.C. increase by 2 levels. Chapter Three. or serious bodily injury of more than one victim. and (D)). apply §2A1.—For purposes of this guideline: "Biological agent" has the meaning given that term in 18 U. 2009 4 levels. § 2332a(c)(2)(B). or business functions or services. 229.1 GUIDELINES MANUAL November 1. Attempted Murder). decontaminate. "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. (a)(4). (C). § 178(1). For additional statutory provision(s). life-threatening.S. governmental.C. §§ 2077(b). "Chemical weapon" has the meaning given that term in 18 U. or (iii) the degree of injury is between that specified in subdivisions (i) and (ii). 1992(a)(2). (c) Cross References (1) If the offense resulted in death. (2) (d) Special Instruction (1) If the defendant is convicted of a single count involving (A) conduct that resulted in the death or permanent. apply §2A2. and (B) includes an organization designated by the Secretary of State as a – 284 – . if the resulting offense level is greater than that determined above. 2131. or (B) conduct tantamount to the attempted murder of more than one victim. If the offense was tantamount to attempted murder.2 (Second Degree Murder) otherwise.C. 832. § 229F(1). (a)(3).S. Definitions.C.§2M6. see Appendix A (Statutory Index). increase by 3 levels. 42 U. Commentary Statutory Provisions: 18 U. or otherwise respond to the offense.1 (Assault with Intent to Commit Murder. (a)(3). 2291. 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.

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

GUIDELINES MANUAL November 1.C. amendment 637). amendment 655). violations of statutes dealing with rules and regulations. November 1. November 1.§2M6. 1990 (see Appendix C. This provision covers. amendments 699 and 700). 2006 (see Appendix C. Rules. (2) Commentary Statutory Provision: 42 U. amendment 679).2. amendment 686). or 6. 1987. 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). 2005 (see Appendix C. 2007 (see Appendix C. – 286 – . for example. § 2273. November 1. if the offense was committed with intent to injure the United States or to aid a foreign nation. amendment 633). and orders of the Nuclear Regulatory Commission and the Department of Energy. life-threatening. Historical Note: Effective November 1.S. amendment 359). 2001 (see Appendix C. Amended effective November 1. or (B) conduct tantamount to the attempted murder of more than one victim. 2009 Application of Special Instruction. 2002 (see Appendix C. or serious bodily injury of more than one victim. 1987.1 3. Amended effective November 1. Historical Note: Effective November 1. license conditions. November 1. November 1. and Regulations (a) Base Offense Level (Apply the greater): (1) 30. Violation of Other Federal Atomic Energy Agency Statutes. 2003 (see Appendix C.—Subsection (d) applies in any case in which the defendant is convicted of a single count involving (A) the death or permanent. §2M6. Background: This section applies to offenses related to nuclear energy not specifically addressed elsewhere.

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

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

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

S. amendment 646). Property Destruction. November 1. or monetary loss resulted from the offense.1 (Theft.C. and Fraud) with "loss" measured by the amount paid. 2001 (see Appendix C. or bodily injury.g. death. 32709(b). amendment 661). Part K (Departures).C.S. Commentary Statutory Provisions: 49 U. Part D (Offenses Involving Drugs and Narco-Terrorism). In the case of an offense involving a substance purported to be an anabolic steroid. Upward Departure Provisions. amendment 451). * * * * * 3. amendment 723). but not containing any active ingredient. November 1. November 1. November 1. §§ 32703-32705. 2009 The cross reference at subsection (c)(1) addresses cases in which the offense involved fraud. apply §2B1. ODOMETER LAWS AND REGULATIONS §2N3. 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. 2006 (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. amendment 733). See Chapter Five. November 1.§2N2. or to conceal. 1987. bribery). – 290 – . November 1. 1991 (see Appendix C. amendment 711). November 1. amendment 432).1 (Theft. an offense covered by another offense guideline (e. Property Destruction.. amendment 685).S. 3. Amended effective November 1. The cross reference at subsection (c)(2) addresses cases in which the offense was committed in furtherance of. The Commission has not promulgated a guideline for violations of 21 U. extreme psychological injury. (B) 4.1. 2007 (see Appendix C. property damage. The defendant was convicted under 7 U. amendment 340). November 1. § 7734. by the victim for such substance. apply §2B1.C. or to be paid. 2002 (see Appendix C. 2003 (see Appendix C. 2009 (see Appendix C. and Fraud). § 333(e) (offenses involving human growth hormones). GUIDELINES MANUAL November 1. 1992 (see Appendix C. amendment 617). 2008 (see Appendix C. Historical Note: Effective November 1. Offenses involving anabolic steroids are covered by Chapter Two.1 2. November 1.

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

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

4. no adjustment is to be made under §3B1. ammunition. LSD. 1989 (see Appendix C. or an employee of the Department of Justice. If the adjustment in subsection (b)(1) applies as a result of conduct that involves an official victim. or a controlled substance (other than LSD. November 1. or a narcotic drug).1(b) (for the sentence being served at the time of the escape). PCP. amendment 341). and §4A1. or safety of an individual. or security of the institution or the life. Providing or Possessing Contraband in Prison (a) Base Offense Level: (1) (2) 23. If death or bodily injury resulted. 1991 (see Appendix C. amendment 406). If the adjustment in subsection (b)(4) applies. 5. methamphetamine. Part A (Criminal History) are to be determined independently of the application of this guideline. discipline.3 (Abuse of Position of Trust or Use of Special Skill). 2009 GUIDELINES MANUAL §2P1. (3) (4) (b) Specific Offense Characteristic (1) If the defendant was a law enforcement or correctional officer or employee.November 1. criminal history points from §4A1. any object that might be used as a weapon or as a means of facilitating escape. amendments 200 and 201). increase by 2 levels.2. Historical Note: Effective November 1. do not apply §3A1. See Chapter Five. if the object was an alcoholic beverage.1(e) (recency) would be applicable. §4A1. 13. if the object was any other object that threatened the order. 4. 1987. health. United States or foreign currency. at the time of the offense. 6.2 2. 1990 (see Appendix C. November 1. "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).1(d) (custody status). methamphetamine.2 (Official Victim). or a narcotic drug. 3. PCP. Part K (Departures). For example. 6. §2P1. if the object was a firearm or destructive device. an upward departure may be warranted. – 293 – . if the object was a weapon (other than a firearm or a destructive device). Amended effective November 1. Criminal history points under Chapter Four. in the case of a defendant serving a one-year sentence of imprisonment at the time of the escape.

1-3D1.2 (c) Cross Reference (1) GUIDELINES MANUAL November 1. § 1791(b) does not require a sentence of imprisonment. 1987. 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. no adjustment is to be made under §3B1.1). comment. November 1. Provided. (n.C. See §3D1. § 1791.S.§2P1. 1995 (see Appendix C. section 1791(c) requires that the sentence be imposed to run consecutively to any other sentence of imprisonment for the controlled substance. Historical Note: Effective November 1. § 1791(c).3 (Abuse of Position of Trust or Use of Special Skill). amendment 525). and the resulting offense level is less than level 26.C. amendment 680). Pursuant to 18 U. 1989 (see Appendix C.2 (Sentencing on Multiple Counts of Conviction) and 18 U.2.2(c). Application Notes: 1. Attempt or Conspiracy).C.5 apply. 2.S.S. 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. November 1. or Trafficking.S. (Note that 18 U. amendment 579). Commentary Statutory Provision: 18 U. § 1791(b)(1). unlike a count in which the statute mandates both a minimum and a consecutive sentence of imprisonment. 2009 If the object of the offense was the distribution of a controlled substance. increase to level 26. Amended effective November 1. – 294 – .S. amendments 202 and 203).1(b)(1). Therefore. November 1. § 1791(a)(1) and is punishable under 18 U.C. § 1791 shall be consecutive to the sentence being served by the inmate at the time of the violation. Exporting.S.) The combined sentence will then be constructed to provide a "total punishment" that satisfies the requirements both of §5G1. 2005 (see Appendix C.C. group the offenses together under §3D1.2(b)(1) applies.S. 1998 (see Appendix C. although if a sentence of imprisonment is imposed on a count involving providing or possessing a controlled substance in prison. (n. comment. a sentence imposed upon an inmate for a violation of 18 U. the grouping rules of §§3D1.1 (Unlawful Manufacturing. that if the defendant is convicted under 18 U.1). § 1791(c).C. 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. and §3D1. apply the offense level from §2D1. If the adjustment in §2P1. For example.C. Importing.

amendment 204). Inciting or Attempting to Incite a Riot Involving Persons in a Facility for Official Detention (a) Base Offense Level: (1) 22. 2009 GUIDELINES MANUAL §2P1.S. Part K (Departures). otherwise. 1987. Historical Note: Effective November 1.4 (Trespass on Bureau of Prisons Facilities). – 295 – . Engaging In.4. if the offense was committed under circumstances creating a substantial risk of death or serious bodily injury to any person. If death or bodily injury resulted. § 1792. §2P1. 16.4 §2P1. [Deleted] Historical Note: Section 2P1. effective November 1. 1987. if the offense involved a major disruption to the operation of an institution.C.3. an upward departure may be warranted. 1989 (see Appendix C. Application Note: 1. was deleted effective November 1.November 1. 10. See Chapter Five. (2) (3) Commentary Statutory Provision: 18 U.

C. (B) (2) If the offense resulted in a substantial likelihood of death or serious bodily injury.2. §2Q1. § 6928(e). Amended effective November 1.§2Q1. continuous.S. or emission of a hazardous or toxic substance or pesticide into the environment. 33 U. See Chapter Five. Mishandling of Hazardous or Toxic Substances or Pesticides. or if cleanup required a substantial expenditure. ENVIRONMENT §2Q1. If the offense resulted in disruption of public utilities or evacuation of a community. 2007 (see Appendix C. 1987. § 1319(c)(3).S. 42 U. Part K (Departures). or emission of a hazardous or toxic substance or pesticide. Knowing Endangerment Resulting From Mishandling Hazardous or Toxic Substances. or if the offense otherwise involved a discharge. an upward departure may be warranted. If death or serious bodily injury resulted. increase by 6 levels.C.C. or repetitive discharge.1 GUIDELINES MANUAL November 1. release.OFFENSES INVOLVING THE ENVIRONMENT 1. – 296 – (3) . Application Note: 1.S. Background: This section applies to offenses committed with knowledge that the violation placed another person in imminent danger of death or serious bodily injury. Unlawfully Transporting Hazardous Materials in Commerce (a) (b) Base Offense Level: 8 Specific Offense Characteristics (1) (A) If the offense resulted in an ongoing. 2009 PART Q . increase by 9 levels. Recordkeeping. Pesticides or Other Pollutants (a) Base Offense Level: 24 Commentary Statutory Provisions: 18 U. and Falsification. increase by 4 levels. amendment 699). Tampering. release. Historical Note: Effective November 1.1. increase by 4 levels. § 1992(b)(3).

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

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

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

amendment 205). a departure of up to three levels upward or downward may be warranted. 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. a departure would be called for.§2Q1. a departure of up to two levels in either direction could be warranted. Threatening to Tamper with a Public Water System (a) Base Offense Level (Apply the greatest): (1) (2) 26. the duration of the offense and the risk associated with the violation. 1989 (see Appendix C. Part K (Departures). Depending upon the nature of the contamination involved. Tampering or Attempted Tampering with a Public Water System. (B) any victim sustained serious bodily injury. Background: This section parallels §2Q1. an upward departure may be warranted. or where there was a failure to obtain a permit when one was required. Amended effective November 1. 1987. and (B) any conduct evidencing an intent to carry out the threat. 22. 2009 upon the harm resulting from the emission. Where a defendant has previously engaged in similar misconduct established by a civil adjudication or has failed to comply with an administrative order. If death or serious bodily injury results. a departure of up to two levels in either direction from that prescribed in these specific offense characteristics may be appropriate.4. 5. a departure of up to two levels in either direction may be warranted. Depending upon the nature and quantity of the substance involved and the risk associated with the offense. Depending upon the nature of the risk created and the number of people placed at risk. 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. increase by 4 levels. the quantity and nature of the substance or pollutant. 6. 8. (3) (b) Specific Offense Characteristics (1) If (A) any victim sustained permanent or life-threatening bodily injury. evacuation or cleanup at substantial expense has been required. Subsection (b)(3) provides an enhancement where a public disruption. Historical Note: Effective November 1.3 GUIDELINES MANUAL November 1.3 (Adequacy of Criminal History Category). 7. See Chapter Five. – 300 – . See §4A1. release or discharge.2 but applies to offenses involving substances which are not pesticides and are not designated as hazardous or toxic. §2Q1. if the offense involved (A) a threat to tamper with a public water system. or 16.

decontaminate. Definitions. continuous. If the offense was tantamount to attempted murder.November 1.1 (Application Instructions).—Subsection (d) applies in any case in which the defendant is convicted of a single count involving (A) the death or permanent. or otherwise respond to the offense. Attempted Murder) if the resulting offense level is greater than that determined above. or (B) a substantial expenditure of funds to clean up. or serious bodily injury of more than one victim. or §2A1.1 (Assault with Intent to Commit Murder. increase by 3 levels. If the offense resulted in an ongoing. (2) If the offense resulted in (A) a substantial disruption of public. . or business functions or services. or serious bodily injury of more than one victim. Application of Special Instruction. Chapter Three. If the offense involved extortion. (2) (3) (d) Special Instruction (1) If the defendant is convicted of a single count involving (A) the death or permanent.C.S. § 300i-1. life-threatening. (3) (c) Cross References (1) If the offense resulted in death. or repetitive release of a contaminant into a public water system or lasted for a substantial period of time. or (C) the degree of injury is between that specified in subdivisions (A) and (B). if the resulting offense level is greater than that determined above. Part D (Multiple Counts) shall be applied as if the defendant had been convicted of a separate count for each such victim. 2009 GUIDELINES MANUAL §2Q1. apply §2B3.4 increase by 2 levels.2 (Second Degree Murder) in any other case.—For purposes of this guideline. life-threatening. or (B) conduct tantamount to the attempted murder of more than one victim. increase by 2 levels. increase by 4 levels. or (B) conduct tantamount to the attempted murder of – 301 – 2. Application Notes: 1. governmental. apply §2A1. apply §2A2."permanent or life-threatening bodily injury" and "serious bodily injury" have the meaning given those terms in Note 1 of the Commentary to §1B1.1 (First Degree Murder) if the death was caused intentionally or knowingly. Commentary Statutory Provision: 42 U.2 (Extortion by Force or Threat of Injury or Serious Damage) if the resulting offense level is greater than that determined above.

1 (Theft. bodily injury. amendment 655). 1989 (see Appendix C. was deleted by consolidation with §2Q1. 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.6. or cause. Attempt or Conspiracy). a downward departure may be warranted. Property Destruction. [Deleted] Historical Note: Effective November 1.9 (Placing or Maintaining Dangerous Devices on Federal Property to Protect the Unlawful Production of Controlled Substances. or are intended to cause. See Application Note 4 of §3A1. November 1. amendment 206). and Fraud). or caused substantial property damage or monetary loss. 1987. 1989 (see Appendix C. 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).4 GUIDELINES MANUAL November 1. Amended effective November 1. 3.5. Amended effective November 1. 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 – . amendment 655). In the unusual case in which such an offense did not cause a risk of death or serious bodily injury. amendment 207). apply §2D1. 2003 (see Appendix C. Historical Note: Effective November 1. and property destruction resulted. 2009 more than one victim. an upward departure may be warranted. If the intent was to obstruct the harvesting of timber. Departure Provisions. or to retaliate against government conduct.— (A) Downward Departure Provision. (B) §2Q1.4 effective November 1. 1987. apply §2B1. 2003 (see Appendix C. Upward Departure Provisions. If the offense was calculated to influence or affect the conduct of government by intimidation or coercion.—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.§2Q1. §2Q1.—If the offense caused extreme psychological injury. and neither caused nor was intended to cause bodily injury. an upward departure would be warranted.4 (Terrorism).

or (B) involved a pattern of similar violations. amendment 208). 2001 (see Appendix C. or plants that were not quarantined as required by law. 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. Offenses Involving Fish. Commentary Statutory Provision: 18 U.2 (Aggravated Assault).S. use the greater): (A) If the market value of the fish. or plants. Wildlife. 1989 (see Appendix C. November 1. amendment 646). Amended effective November 1.C. Property Destruction. increase by 2 levels. wildlife. November 1.November 1. 2009 GUIDELINES MANUAL §2Q2. § 1864. 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. and Fraud) corresponding to that amount. amendment 617). or – 303 – (2) (3) . otherwise. the offense level from §2A2.000. 1990 (see Appendix C. amendment 313). Historical Note: Effective November 1. * * * * * 2. Subsections (a)(1)-(a)(3) cover the more serious forms of this offense. (If more than one applies. or (B) otherwise created a significant risk of infestation or disease transmission potentially harmful to humans. If the offense (A) involved fish. wildlife. increase by 2 levels. fish.000 but did not exceed $5. or plants (i) exceeded $2.1 circumstances manifesting extreme indifference to such risk. or (ii) exceeded $5.1. or (4) 6. 2002 (see Appendix C. Background: The statute covered by this guideline proscribes a wide variety of conduct.000. wildlife.1 (Theft. 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. increase by 1 level. CONSERVATION AND WILDLIFE §2Q2. increase by the number of levels from the table in §2B1.

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

the Migratory Bird Treaty. wildlife. amendment 617).1 effective November 1. Purchase. Historical Note: Effective November 1. 2007 (see Appendix C. 2001 (see Appendix C. 1987. Unlawful Sale. amendment 209). the Marine Mammal Protection Act. amendment 41).November 1. "cultural heritage resource" has the meaning given that term in Application Note 1 of the Commentary to §2B1. amendment 407). §§ 545 and 554 if the smuggling activity involved fish. November 1. November 1. 1989 (see Appendix C. amendment 700). the Bald Eagle Protection Act. For purposes of subsection (c)(1). the Fur Seal Act. and Plants). Cultural Heritage Resources. amendment 534). 1987.S. was deleted by consolidation with §2Q2. or Receipt of Cultural Heritage Resources). §2Q2. Damage to. the Lacey Act. 1989 (see Appendix C. Smuggling and Otherwise Unlawfully Dealing in Fish. 2002 (see Appendix C. Background: This section applies to violations of the Endangered Species Act. amendment 452). – 305 – . Exchange. November 1. effective November 1. 1992 (see Appendix C. 1991 (see Appendix C. 1988 (see Appendix C. November 1. November 1.C. [Deleted] Historical Note: Section 2Q2. amendments 209 and 210). or plants. or Destruction of. Wildlife. Transportation.2.5 (Theft of. November 1.2 (Lacey Act. amendment 638).2 6. the Wild FreeRoaming Horses and Burros Act. 2009 GUIDELINES MANUAL §2Q2. and to violations of 18 U. Amended effective January 15. 1995 (see Appendix C. November 1.

(2) For purposes of this guideline. (c) Special Instruction for Fines (1) For an individual. but not less than $20. When multiple counts or conspiracies are involved.75.000 More than $1. use 20 percent of the volume of affected commerce.000 More than $40.000 Adjustment to Offense Level add 2 add 4 add 6 add 8 add 10 add 12 add 14 add 16. 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 More than $1. 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.000.6 (Minimum and Maximum Multipliers).4 (Base Fine).000. When applying §8C2. If the volume of commerce attributable to the defendant was more than $1.000 More than $250.000 More than $500.ANTITRUST OFFENSES §2R1.000.000.000.000.1.000. 2009 PART R . combined offense level.500. neither the minimum nor maximum multiplier shall be less than 0.000.000 More than $100.Organizations (1) In lieu of the pecuniary loss under subsection (a)(3) of §8C2.000. use as the organization’s volume of commerce the – 306 – (2) (3) . increase by 1 level. the volume of commerce should be treated cumulatively to determine a single. adjust the offense level as follows: Volume of Commerce (Apply the Greatest) (A) (B) (C) (D) (E) (F) (G) (H) More than $1. Bid-Rigging.000. (d) Special Instructions for Fines . In a bid-rigging case in which the organization submitted one or more complementary bids. the guideline fine range shall be from one to five percent of the volume of commerce.000 More than $10.1 GUIDELINES MANUAL November 1.000.000.§2R1.

It is estimated that the average gain from price-fixing is 10 percent of the selling price. the court should consider the extent of the defendant’s participation in the offense. – 307 – .4(a)(3). Because the loss from price-fixing exceeds the gain. Application Notes: 1. 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. In selecting a fine for an organization within the guideline fine range. injury is inflicted upon consumers who are unable or for other reasons do not buy the product at the higher prices. it should impose community service in lieu of a portion of the fine. 3. 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. 4.1 (Aggravating Role).—In setting the fine for individuals. 2. The fine for an organization is determined by applying Chapter Eight (Sentencing of Organizations). The community service should be equally as burdensome as a fine. 2009 GUIDELINES MANUAL §2R1. 3B1. For additional statutory provision(s). The loss from price-fixing exceeds the gain because. if a sales manager organizes or leads the price-fixing activity of five or more participants. this factor should be considered in setting the fine within the guideline fine range. and the degree to which the defendant personally profited from the offense (including salary.1 greater of (A) the volume of commerce done by the organization in the goods or services that were affected by the violation. For purposes of applying §3B1. 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. and career enhancement).1 (Obstructing or Impeding the Administration of Justice) may be relevant in determining the seriousness of the defendant’s offense. For example. Considerations in Setting Fine for Individuals. Commentary Statutory Provisions: 15 U.1(a) should be applied to reflect the defendant’s aggravated role in the offense. In cases in which the actual monopoly overcharge appears to be either substantially more or substantially less than 10 percent.3 (Abuse of Position of Trust or Use of Special Skill). 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. or (B) the largest contract on which the organization submitted a complementary bid in connection with the bid-rigging conspiracy.C. 5.2 (Mitigating Role). Application of Chapter Three (Adjustments). It is the intent of the Commission that alternatives such as community confinement not be used to avoid imprisonment of antitrust offenders. 3B1. among other things.November 1. see Appendix A (Statutory Index).—Sections 3B1. §§ 1. the court should consider both the gain to the organization from the offense and the loss caused by the organization. bonuses. the 4-level increase at §3B1. the defendant’s role.2.S. and 3C1. 3(b).

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

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

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

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

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

§2S1. [Deleted] Historical Note: Section 2S1. 1987. or offshore financial accounts. layering) of transactions.1 effective November 1.—If subsection (b)(3) applies.e. amendment 215). Amended effective November 1.November 1. 1989 (see Appendix C.—For purposes of subsection (b)(3). effective November 1. November 1. 1987.2 excluded from consideration of whether that conviction receives criminal history points pursuant to Chapter Four. amendments 212-214). November 1. transportation. amendment 634).C. transfers.2. do not apply subsection (b)(3) of this guideline. and November 1.2 (Engaging in Monetary Transactions in Property Derived from Specified Unlawful Activity). amendment 422).S.—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. Sophisticated laundering typically involves the use of— (i) (ii) (iii) fictitious entities. involving criminally derived funds that were intended to appear legitimate. amended effective November 1. 2003 (see Appendix C. Part A (Criminal History). 2009 GUIDELINES MANUAL §2S1. § 1956 offense. amendment 655). 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. shell corporations. 1991 (see Appendix C. – 313 – . 1989 (see Appendix C. amendments 378 and 422). two or more levels (i. 6. 5. the counts shall be grouped pursuant to subsection (c) of §3D1. "sophisticated laundering" means complex or intricate offense conduct pertaining to the execution or concealment of the 18 U. the defendant made statements that the defendant engaged in any of the conduct described in subdivisions (i) through (iv).. was deleted by consolidation with §2S1. (iv) (B) Non-Applicability of Enhancement. 2001 (see Appendix C. 2001 (see Appendix C. (vi) During the course of an undercover government investigation. November 1.2 (Groups of CloselyRelated Counts). 1991 (see Appendix C. Grouping of Multiple Counts. Historical Note: Effective November 1. (A) Sophisticated Laundering under Subsection (b)(3). or transmissions. amendment 634).

apply the most appropriate guideline from Chapter Two.S. § 5318 or § 5318A. 7206 (if a violation based upon 26 U. 5332. (2) (3) (c) Cross Reference (1) If the offense was committed for the purposes of violating the Internal Revenue laws. § 1960(b)(1)(A) and (B)). If the defendant (A) was convicted of an offense under subchapter II of chapter 53 of title 31.C. 31 U. or were intended to promote unlawful activity.C. GUIDELINES MANUAL November 1.C. see Appendix A (Statutory Index). 5318. 5318A(b). – 314 – . § 6050I). 5324. or 6 plus the number of offense levels from the table in §2B1. and Fraud) corresponding to the value of the funds. Knowingly Filing False Reports.S. and (B) committed the offense as part of a pattern of unlawful activity involving more than $100.C.§2S1. 5326.C. Commentary Statutory Provisions: 18 U. (b) Specific Offense Characteristics (1) If (A) the defendant knew or believed that the funds were proceeds of unlawful activity. Failure to Report Cash or Monetary Transactions.S.S. For additional statutory provision(s). Part T (Offenses Involving Taxation) if the resulting offense level is greater than that determined above.1 (Theft. Failure to File Currency and Monetary Instrument Report. or (B) the offense involved bulk cash smuggling. If (A) subsection (a)(2) applies and subsections (b)(1) and (b)(2) do not apply. (C) the funds were the proceeds of lawful activity. § 6050I). Establishing or Maintaining Prohibited Accounts (a) Base Offense Level: (1) (2) 8. 26 U. Bulk Cash Smuggling. Property Destruction. if the defendant was convicted under 31 U. 2009 Structuring Transactions to Evade Reporting Requirements.3. United States Code. 5331. decrease the offense level to level 6. 5322.000 in a 12-month period. and (D) the funds were to be used for a lawful purpose. 5316. increase by 2 levels. § 1960 (but only with respect to unlicensed money transmitting businesses as defined in 18 U. if subsection (a)(1) does not apply.S. (B) the defendant did not act with reckless disregard of the source of the funds.3 §2S1.S.S.C. §§ 5313. increase by 2 levels. §§ 7203 (if a violation based upon 26 U. 5314.C.

4 (Failure to File Currency and Monetary Instrument Report). Currency and Monetary Instrument Reports. "pattern of unlawful activity" means at least two separate occasions of unlawful activity involving a total amount of more than $100. Bulk Cash Smuggling. amendments 379 and 422). 1991 (see Appendix C. reporting and identification requirements. The relevant statutes require monetary reporting without regard to whether the funds were lawfully or unlawfully obtained. and (B) transporting or transferring (or attempting to transport or transfer) such currency or monetary instruments into or outside of the United States.S. 2001 (see Appendix C. "bulk cash smuggling" means (A) knowingly concealing.000 in currency or other monetary instruments. amendment 490). Historical Note: Effective November 1. 2.4 Application Notes: 1. and other types of transactions and types of accounts. amendment 655). November 1. §2S1.S.3 effective November 1. 1987. and foreign banks. 1993 (see Appendix C. November 1. Background: Some of the offenses covered by this guideline relate to records and reports of certain transactions involving currency and monetary instruments. 1989 (see Appendix C. § 5316. 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. amendments 379 and 422). These reports include Currency Transaction Reports. November 1. Definition of "Value of the Funds". prohibited accounts involving certain foreign jurisdictions.—For purposes of subsection (b)(1)(B). 2003 (see Appendix C. – 315 – .C.—For purposes of this guideline. [Deleted] Historical Note: Section 2S1.November 1. amendments 216-218).000 in a 12-month period. 1991 (see Appendix C. §§ 5318 and 5318A. 3. "United States" has the meaning given that term in Application Note 1 of the Commentary to §2B5. This guideline also covers offenses under 31 U. Amended effective November 1. 2009 GUIDELINES MANUAL §2S1. with the intent to evade a currency reporting requirement under 31 U. November 1. "value of the funds" means the amount of the funds involved in the structuring or reporting conduct. 2002 (see Appendix C. amendment 637). and Reports of Cash Payments Over $10. Enhancement for Pattern of Unlawful Activity. more than $10. 1993 (see Appendix C.4. foreign institutions. Reports of Foreign Bank and Financial Accounts. November 1. amendments 617 and 634).000 Received in a Trade or Business.1 (Offenses Involving Counterfeit Bearer Obligations of the United States).C.—For purposes of subsection (b)(2). amendment 490). effective November 1. pertaining to records. was deleted by consolidation with §2S1.

Supply Information. Historical Note: Effective November 1. the loss that would have resulted had the offense been successfully completed).e. GIFT TAXES. the tax loss is the total amount of loss that was the object of the offense (i. AND CUSTOMS TAXES) Historical Note: Effective November 1. Amended effective November 1.1 (Tax Table) corresponding to the tax loss. (2) (c) Special Instructions For the purposes of this guideline -(1) If the offense involved tax evasion or a fraudulent or false return. If the offense involved sophisticated means. If the resulting offense level is less than level 12.1. or other document. INCOME TAXES. or Pay Tax. or 6. TOBACCO. Because of the limited number of criminal tax prosecutions relative to the estimated incidence of such violations.000 in any year from criminal activity. Criminal tax prosecutions serve to punish the violator and promote respect for the tax laws. Tax Evasion. increase by 2 levels. 1987. increase to level 12. 1987. Statements. Specific Offense Characteristics (1) If the defendant failed to report or to correctly identify the source of income exceeding $10. amendment 491). or Other Documents (a) Base Offense Level: (1) (2) (b) Level from §2T4. – 316 – .OFFENSES INVOLVING TAXATION 1. ESTATE TAXES.§2T1. 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. increase to level 12. increase by 2 levels.. If the resulting offense level is less than level 12. statement. AND EXCISE TAXES (OTHER THAN ALCOHOL. Fraudulent or False Returns. EMPLOYMENT TAXES. Introductory Commentary The criminal tax laws are designed to protect the public interest in preserving the integrity of the nation’s tax system. 1993 (see Appendix C. if there is no tax loss. Willful Failure to File Return. §2T1. 2009 PART T . deterring others from violating the tax laws is a primary consideration underlying these guidelines.1 GUIDELINES MANUAL November 1.

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

the tax loss is treated as $29.S.000 in false tax credits.800. 2009 Commentary Statutory Provisions: 26 U. Example 1: A defendant files a tax return reporting income of $40.000 of false tax credits) unless sufficient information is available to make a more accurate assessment of the tax loss. Although the definition of tax loss corresponds to what is commonly called the "criminal figures.000 ($90. 7203 (other than a violation based upon 26 U. In cases involving other types of taxes. and 7207. the presumptions in the notes under subsections (c)(1) and (c)(2) do not apply. the defendant claims $10. Under the note to subsection (c)(2). Application Notes: 1. see Appendix A (Statutory Index).000 of reported gross income = $70.000 of actual gross income minus $40. 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.S.000.000.S. § 7201 and willful failure to pay cases under 26 U. such as when indirect methods of proof are used. 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 tax loss is treated as $14. the guidelines contemplate that the court will simply make a reasonable estimate based on the available facts. The tax loss does not include interest or penalties. "Tax loss" is defined in subsection (c).600 ($130.C.600.600 in income tax was withheld by his employer.000 of reported gross income = $50. 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.§2T1.1 GUIDELINES MANUAL November 1. 2.C.000 of actual gross income minus $60.S. In some instances.000.C. 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. except in willful evasion of payment cases under 26 U. and $2. Under Note (A) to subsection (c)(1).000 of gross income x 20% = $4.000 x 28% = $19. In determining the tax loss attributable to the offense.600 of tax withheld) unless sufficient information is available to make a more accurate assessment of the tax loss. If none of the methods of determining the tax loss set forth fit the circumstances of the particular case. In determining the total tax loss attributable to the offense (see §1B1." its amount is to be determined by the same rules applicable in determining any other sentencing factor. §§ 7201. § 6050I). plus $10.C. § 7203. In these situations. the amount of the tax loss may be uncertain. minus $2. Example 2: A defendant files a tax return reporting income of $60. 7206 (other than a violation based upon 26 U.3(a)(2)). Under Note (A) to subsection (c)(1). all conduct violating the tax laws should be considered as part of the same course of conduct or common – 318 – .C.200 ($24. the tax loss is treated as $2.000 x 28%) unless sufficient information is available to make a more accurate assessment of the tax loss. Example 3: A defendant fails to file a tax return for a year in which his salary was $24. In addition. § 6050I or § 7206(2)).000 when his income was actually $90. For additional statutory provision(s).000 when his income was actually $130.S.

" for the purposes of this section.C. corporate shells. e. Background: This guideline relies most heavily on the amount of loss that was the object of the offense. e. (c) the violations involve the same or a related series of transactions. or both. the tax loss is the aggregate tax loss from the individual tax offense and the corporate tax offense added together.000 ($100. Conduct such as hiding assets or transactions. in and of themselves. 5.. and (B) the unreported or diverted amount multiplied by (i) 34%. or (ii) the tax rate for the corporate tax offense. the defendant. or foreign law. (b) the defendant uses a consistent method to evade or camouflage income. "Criminal activity" means any conduct constituting a criminal offense under federal. state. a "deduction" is an item that reduces the amount of taxable income. 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.000 ($100. Tax offenses. 2009 GUIDELINES MANUAL §2T1. In contrast.g. the sole owner of a Subchapter C corporation. 3.g. and (e) the violation in each instance involves a failure to report or an understatement of a specific source of income.000 ($34.. assume the use of 34% with respect to the corporate tax loss and the use of 28% with respect to the individual tax loss. If the offense involved both individual and corporate tax returns. "sophisticated means" means especially complex or especially intricate offense conduct pertaining to the execution or concealment of an offense. fraudulently understates the corporation’s income in the amount of $100. the sanction necessary to deter also increases. if sufficient information is available to make a more accurate assessment of that tax rate. § 61 and 26 C. "Gross income. or offshore financial accounts ordinarily indicates sophisticated means.000 + $28. 7. through the use of fictitious entities.F.000 on the corporation’s tax return.61. as the potential benefit from the offense increases. The tax loss attributable to the defendant’s corporate tax return is $34. The tax loss for the offenses are added together to equal $62. and does not report these funds on the defendant’s individual tax return.000). however. For example. A "credit claimed against tax" is an item that reduces the amount of tax directly.R. has the same meaning as it has in 26 U. 4. Sophisticated Means Enhancement. if sufficient information is available to make a more accurate assessment of that tax rate. or (ii) the tax rate for the individual tax offense. (d) the violation in each instance involves a false or inflated claim of a similar deduction or credit. the tax loss is the sum of (A) the unreported or diverted amount multiplied by (i) 28%.000 multiplied by 34%). The tax loss attributable to the defendant’s individual tax return is $28.November 1.1 scheme or plan unless the evidence demonstrates that the conduct is clearly unrelated. backdating documents or using off-shore accounts. These examples are not intended to be exhaustive.— For purposes of subsection (b)(2). are serious offenses.000 multiplied by 28%). – 319 – .S. interest from savings accounts or income from a particular business activity. 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. a greater tax loss is obviously more harmful to the treasury and more serious than a smaller one with otherwise similar characteristics. local. § 1. Furthermore. For purposes of this example. Accordingly. diverts the funds to the defendant’s own use. 6.

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

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

the offense is a form of tax evasion.1. 2001 (see Appendix C. §2T1.1 (Tax Table) corresponding to the tax not collected or accounted for and paid over. amendment 617). but also collected the tax from employees and did not account to them for it. and Fraud) if the resulting offense level is greater than that determined above. 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. 1989 (see Appendix C. Property Destruction. amendment 409). amendment 343). 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. amendment 577). amendment 491). was deleted by consolidation with §2T1.4 GUIDELINES MANUAL November 1. – 322 – . apply §2B1. Amended effective November 1.6.S. amendment 617). Statements. November 1. Where no effort is made to defraud the employee. amendment 232). Other considerations are similar to those in §2T1. as must the failure to pay. [Deleted] Historical Note: Section 2T1. Amended effective November 1. 1991 (see Appendix C. 1989 (see Appendix C. November 1. amendment 491). amendments 231 and 303). it is both tax evasion and a form of embezzlement. 1987. 1990 (see Appendix C. 1987. 2001 (see Appendix C. or Other Documents). 1993 (see Appendix C. In the event that the employer not only failed to account to the Internal Revenue Service and pay over the tax. Subsection (b)(1) addresses such cases. November 1. The failure to collect or truthfully account for the tax must be willful. Background: The offense is a felony that is infrequently prosecuted. November 1. Historical Note: Effective November 1. 1993 (see Appendix C.5.5 (Fraudulent Returns.1 effective November 1. Historical Note: Effective November 1. November 1. November 1.§2T1. Application Note: 1.1 (Theft. and is treated as such in the guidelines. 1987. (b) Commentary Statutory Provision: 26 U. §2T1. § 7202. 1998 (see Appendix C.C. effective November 1. Failing to Collect or Truthfully Account for and Pay Over Tax (a) Base Offense Level: Level from §2T4.

C. Commentary Statutory Provisions: 26 U. Accordingly. 1987. The more serious offense is 26 U. although some effort has been made to tie the offense level to the level of taxes that were not deposited. imprisonment was unusual. nor even that taxes have not been paid. §2T1. 7512(b).6).7. Offenses Relating to Withholding Statements (a) Base Offense Level: 4 Commentary Statutory Provisions: 26 U. payment of taxes. If the defendant was attempting to evade. § 7202 (see §2T1. 7205.C. It is recommended that the fine be based on the total amount of funds not deposited. or 5 less than the level from §2T4. the offense level has been set considerably lower than for tax evasion.1 (Tax Table) corresponding to the amount not deposited. Failing to Deposit Collected Taxes in Trust Account as Required After Notice (a) Base Offense Level (Apply the greater): (1) (2) 4. rather than merely delay. amendment 674). they should be treated as never having been deposited. – 323 – .S.C.S. This offense should be relatively easy to detect and fines may be feasible. Historical Note: Effective November 1. 2004 (see Appendix C. Background: This offense is a misdemeanor that does not require any intent to evade taxes.8 §2T1. §§ 7204. If funds are deposited and withdrawn without being paid to the Internal Revenue Service. §§ 7215. Application Note: 1. Application Notes: 1. Historical Note: Effective November 1. 2. Background: The offenses are misdemeanors.S. 2009 GUIDELINES MANUAL §2T1. 1987.8. Amended effective November 1.November 1. Under pre-guidelines practice. an upward departure may be warranted.

915 (2d Cir. Specific Offense Characteristics If more than one applies. obstructing.9 §2T1. or an offense involving the marketing of fraudulent tax shelters or schemes).2d 1544 (11th Cir. Application Notes: 1.4(b)(1) is applied.2d 908.S. such as a husband and wife. 4. 699 F. assessment. Obstruct.§2T1. assessment. obstruct. as appropriate. impairing. 924 (1958). United States v. § 371. 3. computation. other than the participants directly involved in the offense. 723 F.1 or §2T1.4 (whichever guideline most closely addresses the harm that would have resulted had the conspirators succeeded in impeding. See also United States v. however. Impair. obstructing and defeating .9(a)(1) or (2). 1983). increase by 2 levels. cert. 2009 Conspiracy to Impede. 464 U. It does not apply to taxpayers. denied. increase by 4 levels. Carruth. Do not. Specific offense characteristics from §2T1. 355 U. impairing. apply this adjustment if an adjustment from §2T1. or defeat the ascertainment.1 or §2T1. . or Defeat Tax (a) Base Offense Level (Apply the greater): (1) (2) (b) Offense level determined from §2T1. . If the conduct was intended to encourage persons other than or in addition to co-conspirators to violate the internal revenue laws or impede. 1021 (9th Cir. (2) Commentary Statutory Provision: 18 U. the base offense level is 10. cert. impair. 247 F.S. . or collection of revenue. obstruct. impair.2d 1017." United States v.g.9.. an offense involving a "tax protest" group that encourages persons to violate the tax laws. denied. This section applies to conspiracies to "defraud the United States by impeding. The base offense level is the offense level (base offense level plus any applicable specific offense characteristics) from §2T1. GUIDELINES MANUAL November 1. computation.S. or defeating the Internal Revenue Service) if that offense level is greater than 10. or 10. the collection of revenue. – 324 – 2.9(b) are to be applied to the base offense level determined under §2T1. or defeat the ascertainment. 1038 (1984).4.C. Subsection (b)(2) provides an enhancement where the conduct was intended to encourage persons. Klein. 1957). use the greater: (1) If the offense involved the planned or threatened use of violence to impede. who merely evade taxes jointly or file a fraudulent return. Browning. Otherwise. 1984). to violate the tax laws (e. or collection of revenue.

– 325 – . Application Notes: 1. 5691. 1987.S. §2T2. the conduct is dealt with by dividing offenses into two broad categories: tax evasion offenses and regulatory offenses. November 1.1. 5661. 5691. making it quite difficult to evaluate the extent of the revenue loss caused. ALCOHOL AND TOBACCO TAXES Introductory Commentary This section deals with offenses contained in Parts I-IV of Subchapter J of Title 26.S. It also typically is complex and may be far-reaching. 1993 (see Appendix C. chiefly 26 U. Historical Note: Effective November 1. 5762. Amended effective November 1. and 5762. Commentary Statutory Provisions: 26 U. 1987. 5608. amendments 233 and 234). no effort has been made to provide a section-by-section set of guidelines. where the essence of the conduct is tax evasion or a regulatory violation. or that the defendant was attempting to evade. §§ 5601-5605. 5671. 5607. Because these offenses are no longer a major enforcement priority. Rather. see Appendix A (Statutory Index). For purposes of this guideline. The tax loss is the total amount of unpaid taxes that were due on the alcohol and/or tobacco. 5661. 5671. * * * * * 2.November 1. §§ 5601-5605. 5608. provided the conduct constitutes non-payment.C.1 Background: This type of conspiracy generally involves substantial sums of money.C. 2009 GUIDELINES MANUAL §2T2. 1989 (see Appendix C. Historical Note: Effective November 1. amendment 491). evasion or attempted evasion of taxes. 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. the "tax loss" is the amount of taxes that the taxpayer failed to pay or attempted not to pay.1 (Tax Table) corresponding to the tax loss. Non-Payment of Taxes (a) Base Offense Level: Level from §2T4. For additional statutory provision(s).

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

or 4. 3. . A sentence based upon an alternative measure of the "duty" evaded. Particular attention should be given to those items for which entry is prohibited. 1465.1 (Tax Table) corresponding to the tax loss.S. increase to level 12. 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. if the tax loss exceeded $1. Such conduct generally poses a lesser threat to revenue collection. (2) (3) For purposes of this guideline. such as the increase in market value due to importation. or 5. If the resulting offense level is less than level 12.S.1.November 1. 547. see Appendix A (Statutory Index). Especially when such items are harmful or protective quotas are in effect. 550. or restricted. apply that offense guideline if the resulting offense level is greater than that determined above. 541-545. if the tax loss did not exceed $100. the duties evaded on such items may not adequately reflect the harm to society or protected industries resulting from their importation. 1436.1 §2T3. 1464. (c) Cross Reference (1) If the offense involves a contraband item covered by another offense guideline. an upward departure may be warranted. Evading Import Duties or Restrictions (Smuggling). Commentary Statutory Provisions: 18 U. Application Notes: 1.—For purposes of subsection (b)(1). 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. In such instances. 548. the "tax loss" is the amount of the duty. limited. For additional statutory provision(s). 1586(e).C. 1915. 2009 GUIDELINES MANUAL §2T3. §§ 283. 1708(b). 3907. (b) Specific Offense Characteristic (1) If the offense involved sophisticated means. Sophisticated Means. increase by 2 levels.000.000. 551. 19 U. Receiving or Trafficking in Smuggled Property (a) Base Offense Level: (1) The level from §2T4. might be considered. §§ 496. "sophisticated means" means especially complex or especially intricate offense conduct pertaining to the execution or – 327 – 2. if the tax loss exceeded $100 but did not exceed $1.C.

through the use of fictitious entities. 1987. amendment 491).§2T3. amendment 236) and November 1. amendment 647). Historical Note: Effective November 1. 1992 (see Appendix C. amendment 617). amendment 453). amendment 410). amendment 237).000 More than $5.1 GUIDELINES MANUAL November 1. November 1.000 More than $1. November 1.2 (Receiving or Trafficking in Smuggled Property).000 More than $100.500 More than $30. – 328 – .000 More than $400. 2003 (see Appendix C. amendment 577).000 More than $80.000. or both. 1991 (see Appendix C.000.000 More than $7.000. Tax Table Tax Loss (Apply the Greatest) (A) (B) (C) (D) (E) (F) (G) (H) (I) (J) (K) (L) (M) (N) (O) (P) $2. November 1.1 effective November 1. effective November 1.2. 1987.000 More than $12. * * * * * 4. was deleted by consolidation with §2T3. 1989 (see Appendix C. TAX TABLE §2T4.000 Offense Level 6 8 10 12 14 16 18 20 22 24 26 28 30 32 34 36.000. 2003 (see Appendix C. 1993 (see Appendix C.1. amendment 685). 2009 concealment of an offense. Amended effective November 1. 1992 (see Appendix C.000 More than $400. 653). 1989 (see Appendix C. 2006 (see Appendix C. amendment 453). amendment 410).000 More than $50.500. Conduct such as hiding assets or transactions. November 1.000 More than $200.000. 1998 (see Appendix C. November 1. November 1. November 1. 1991 (see Appendix C.000 More than $2.000 More than $200. 1989 (see Appendix C.000 or less More than $2. November 1. 1987. Historical Note: Effective November 1. January 25. Amended effective November 1. [Deleted] Historical Note: Section 2T3. amendment 235). amendment 617).000. amended effective November 1.000. 2001 (see Appendix C. 2001 (see Appendix C. or offshore financial accounts ordinarily indicates sophisticated means.000 More than $20. corporate shells. §2T3.

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

2D1.4. 2D1. Certain attempts. 2A4.C.5. 18 U. §§2D1.6. § 2332a. 2A3. § 1362.8. and solicitations are expressly covered by other offense guidelines. §§2C1.1.S. 372. 2A3.1. – 330 – . Offense guidelines that expressly cover conspiracies include: §2A1. 2D1.11. 2D2. and 49 U.S. 2282A. 2D1.11. § 1363. 49 U. 2A3.6. 2D1. Application Notes: 1. 2271. § 32. 2D1.C.2.8. § 1992(a)(1)-(a)(7).5. 49 U.1.2. 2282B. 2D1.12. 2009 Any of the following offenses.S. (a)(9). 2D2. 2D1. § 60123(b).1.C.S. 2D1. §2Q1. 18 U.S. § 81. 18 U.1.C.S.10.C.2.S.2. §2E5.S. and 18 U. § 46504. 2D3.2.S. a federal crime of terrorism as defined in 18 U.2. 18 U.1.1. 2D3. Offense guidelines that expressly cover attempts include: §§2A2. 2A5.C.3. or was intended to promote. 2D1.1.7. For additional statutory provision(s). 18 U.1. 2D1. 2D1. (a)(10).12.9.S. 2D2. 2D2. if such offense involved. § 46505. 2D1.§2X1. 2D1.10. § 2339A.4.C. §2M6. § 2340A. 2C1.1 (A) GUIDELINES MANUAL November 1.2. 2A3.2.13.1.1. (B) Any of the following offenses: 18 U.S.9. 2D1.C. §2N1. 2D3. § 2332b(g)(5): 18 U. §§ 371.C. 2D1.C.1.S.1. see Appendix A (Statutory Index). conspiracies.C. §§2D1.5.C.S. Commentary Statutory Provisions: 18 U. 2D1.2.13. 2D1. 18 U. § 930(c).S. 2D1.7.C. 2D1.C. 2D3.

November 1. the offense level ordinarily would not include aggravating factors regarding possible injury to others. no reduction of the offense level is warranted. For example.000. discharge of a weapon. whether the 3-level reduction under §2X1. whichever is greater. hostage taking. – 331 – .1. or (b)(3)(A)). means the offense that the defendant was convicted of soliciting.1(a). 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.1 §2H1. the arrest occurs well before the defendant or any co- 3. "Substantive offense.2. 4. §2M6. 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. If it was established that the defendants actually intended to physically restrain the teller. If the substantive offense is not covered by a specific guideline. In such cases.9. The offense level would simply reflect the level applicable to robbery of a financial institution. Offense guidelines that expressly cover solicitations include: §2A1. §2T1. Speculative specific offense characteristics will not be applied. (b)(2).000. (b)(2). In the case of multiple counts that are not closely related counts.1. where the intended offense was the theft of $800.000 minus 3 levels. 2. Sometimes." as used in this guideline. or obtaining a large sum of money.1(b)(1). 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). of the intended offense.1 (Other Offenses). In an attempted theft. because such factors would be speculative. For example. or the offense level for the theft of $30.1. the base offense level will be the same as that for the substantive offense. the specific offense characteristic for physical restraint would be added.000 but the participants completed (or were about to complete) only the acts necessary to steal $30. see §2X5. §2E5. or (b)(3)(A) applies is determined separately for each count. 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. the offense level is the offense level for the theft of $800. or conspiring to commit. 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. the value of the items that the defendant attempted to steal would be considered.1(b)(1). Under §2X1. §§2C1. 2009 GUIDELINES MANUAL §2X1. Background: In most prosecutions for conspiracies or attempts. In certain cases. attempting. if two defendants are arrested during the conspiratorial stage of planning an armed bank robbery. with the enhancement for possession of a weapon. 2C1.1.5. but not all. In such cases. however.

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

§ 2339C(a)(1)(A)). in connection with the concealment of or an escape from that offense). amendment 700). § 2339B with respect to which the material support or resources were concealed or disguised.S. 2339C(c)(2)(A). 1993 (see Appendix C. § 2339 or § 2339A or who committed any offense involving or intending to promote a federal crime of terrorism. Historical Note: Effective November 1. November 1. as defined in 18 U.—For purposes of this guideline. except as provided in subdivisions (2) and (3). amendment 243). Application of Mitigating Role Adjustment. "underlying offense" means the violation of 18 U. amendment 637).—The adjustment from §3B1.S.C. Amended effective November 1. amendment 655). 2339. November 1. 1989 (see Appendix C.C.S.C.2 (Mitigating Role) normally would not apply because an adjustment for reduced culpability is incorporated in the base offense level.e. November 1. 1987.S.C. 1071. amendment 380). The limitation in subdivision (B) shall not apply in any case in which (i) the defendant is convicted under 18 U. or in the case of a violation of 18 U. as provided in subdivision (A). or reasonably should have been known.S. 2284. amendment 496).C. – 333 – .S. or in the case of a violation of 18 U. 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. § 2332b(g)(5).November 1.C. 2003 (see Appendix C. November 1. Apply the base offense level plus any applicable specific offense characteristics that were known. (2) (3) (B) (C) Commentary Statutory Provisions: 18 U. 2002 (see Appendix C. 2009 GUIDELINES MANUAL §2X3. 2007 (see Appendix C. § 2339 or § 2339A. "underlying offense" means the offense the defendant is convicted of having materially supported after its commission (i. The base offense level under this guideline shall be not less than level 4. (A) The base offense level under this guideline shall be not more than level 30. 1991 (see Appendix C. see Application Note 10 of the Commentary to §1B1.C.. other than a case described in subdivision (C).C. Definition. 1072. § 2339C(c)(2)(A). § 2339A.S. "underlying offense" means the offense as to which the defendant is convicted of being an accessory. Application Notes: 1. by the defendant. November 1. the base offense level under this guideline shall be not more than level 30. 2339A. or (ii) the conduct involved harboring a person who committed any offense listed in 18 U. 2.3 (Relevant Conduct). In such a case. 757. except as provided in subdivision (B). the base offense level under this guideline shall be not more than level 20. §§ 3.1 (1) 6 levels lower than the offense level for the underlying offense.

2.C. as that conduct is described in 18 U. 2009 * * * * * 4. 1989 (see Appendix C. MISPRISION OF FELONY §2X4. Amended effective November 1.1 GUIDELINES MANUAL November 1. or reasonably should have been known. §2X5.3 (Relevant Conduct). Historical Note: Effective November 1.S. apply the guideline that covers the conduct the defendant is convicted of having engaged in. November 1. amendment 685). Apply the base offense level plus any applicable specific offense characteristics that were known. The adjustment from §3B1.C. Other Felony Offenses If the offense is a felony for which no guideline expressly has been promulgated. 1987. * * * * * 5. Application Notes: 1. If the defendant is convicted under 18 U. amendment 244).S. 1987. amendment 496). except that any guidelines and policy statements that can be applied meaningfully in the absence of a Chapter Two offense guideline shall remain applicable.1. but in no event less than 4.1.C. § 1841(b). § 1841(a)(1) and listed in 18 U. see Application Note 10 of the Commentary to §1B1. by the defendant. or more than 19.S. § 4.S.2 (Mitigating Role) normally would not apply because an adjustment for reduced culpability is incorporated in the base offense level.C. Commentary Statutory Provision: 18 U. – 334 – . ALL OTHER FELONY OFFENSES AND CLASS A MISDEMEANORS Historical Note: Effective November 1.S.C. § 3553 shall control. § 1841(a)(1). 1993 (see Appendix C. Amended effective November 1. Misprision of Felony (a) Base Offense Level: 9 levels lower than the offense level for the underlying offense. the provisions of 18 U. 2006 (see Appendix C.§2X4. apply the most analogous offense guideline. "Underlying offense" means the offense as to which the defendant is convicted of committing the misprision. If there is not a sufficiently analogous guideline.

C. Part A (Sentencing Procedures).S.2 (Class A Misdemeanors (Not Covered by Another Specific Offense Guideline)).1 Commentary Statutory Provision: 18 U. Part H (Specific Offender Characteristics). § 3553 control.—This guideline applies only to felony offenses not referenced in Appendix A (Statutory Index). i. or serious bodily injury to.1 (Imposition of a Term of Supervised Release). Chapter Five. and. §5D1. § 1841(a)(1).3 (Conditions of Probation). §5E1. Chapter Five..3 (Conditions of Supervised Release).C. Part J (Relief from Disability).S. §5E1.—If the defendant is convicted under 18 U. §5G1. §5D1. if so. In General.C.C. For example. The court is required to determine if there is a sufficiently analogous offense guideline. Part K (Departures). the applicable Chapter Two guideline would be §2A3. For Class A misdemeanor offenses that have not been referenced in Appendix A. the provisions of 18 U. In a case in which there is no sufficiently analogous guideline.S. 2009 GUIDELINES MANUAL §2X5.—Guidelines and policy statements that can be applied meaningfully in the absence of a Chapter Two offense guideline include: §5B1.—For offenses under 18 U.C. Part B (Plea Agreements). Chapter Six. Chapter Five. Upward Departure Provision.S.1 (Restitution).4 (Forfeiture). Application of §2X5. Nonetheless. § 13 (Assimilative Crimes Act) – 335 – .S. The sentencing guidelines apply to convictions under 18 U. § 1841(b) and that results in the death of.C. the specific guidelines that have been promulgated cover the type of criminal behavior that most such offenses proscribe. are not listed in the Statutory Index or in any of the lists of Statutory Provisions that follow each offense guideline. Chapter Five. §5E1. an upward departure may be warranted if the offense level under the applicable guideline does not adequately account for the death of. Application Notes: 1. if the defendant committed aggravated sexual abuse against the unborn child’s mother and it caused the death of the child in utero.S.e.November 1. § 1841(a)(1). the child in utero. § 1841(a)(1).S. Chapter Six.— (A) In General. §5D1. Attempt to Commit Criminal Sexual Abuse). the Chapter Two offense guideline that applies is the guideline that covers the conduct the defendant is convicted of having engaged in.1 (Criminal Sexual Abuse. (B) 3. Background: Many offenses.2 (Term of Supervised Release). apply §2X5. 2.2. Convictions under 18 U. to apply the guideline that is most analogous. especially assimilative crimes. the conduct of which the defendant is convicted that violates a specific provision listed in 18 U.C. a child in utero at the time of the offense of conviction.3 (Imposition of a Sentence on a Defendant Subject to an Undischarged Term of Imprisonment). § 1841(a)(1). or bodily injury to.3 (Special Assessments). Part F (Sentencing Options).

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

§ 25 and the underlying crime of violence.C. Multiple counts involving the use of a minor in a crime of violence shall not be grouped under §3D1. Definition. 2.2 (Groups of Closely Related Counts). 16. Border Tunnels and Subterranean Passages (a) Base Offense Level: (1) If the defendant was convicted under 18 U. § 555(b).1 Application Notes: 1.C.S. If the resulting offense level is less than level 16. § 555(c). – 337 – . amendment 700).S. Amended effective November 1. 4 plus the offense level applicable to the underlying smuggling offense. § 555(a).C. 2009 (see Appendix C.—For purposes of this guideline.C. (2) (3) Commentary Statutory Provision: 18 U.1. OFFENSES INVOLVING BORDER TUNNELS AND SUBMERSIBLE AND SEMI-SUBMERSIBLE VESSELS Historical Note: Effective November 1.C. 3. § 555. Multiple Counts. "underlying crime of violence" means the crime of violence as to which the defendant is convicted of using a minor. increase to level 16. 2009 GUIDELINES MANUAL §2X7. (B) Historical Note: Effective November 1.4. amendment 674). Inapplicability of §3B1. 2007 (see Appendix C. the counts shall be grouped pursuant to subsection (a) of §3D1. 2004 (see Appendix C. if the defendant was convicted under 18 U. or 8. * * * * * 7. amendment 728). if the defendant was convicted under 18 U.— (A) In a case in which the defendant is convicted under both 18 U.—Do not apply the adjustment under §3B1.S.S.2.November 1. §2X7.4 (Using a Minor to Commit a Crime).S.

Upward Departure Provisions. amendment 724). increase by 8 levels. amendment 728). Historical Note: Effective November 1. § 2285. or the sinking of the vessel. amendment 700).C. 2009 (see Appendix C. Application Note: 1.1 Application Note: 1. "underlying smuggling offense" means the smuggling offense the defendant committed through the use of the tunnel or subterranean passage.2. (B) (C) Commentary Statutory Provision: 18 U. GUIDELINES MANUAL November 1. 2008 (see Appendix C. §2X7. 2009 Definition. – 338 – . § 2285 to facilitate other felonies.S.§2X7.C. Historical Note: Effective November 1. The offense involved use of the vessel as part of an ongoing criminal organization or enterprise.—For purposes of this guideline. Amended effective November 1. increase by 4 levels. increase by 2 levels. an attempt to sink the vessel.—An upward departure may be warranted in any of the following cases: (A) The defendant engaged in a pattern of activity involving use of a submersible vessel or semi-submersible vessel described in 18 U. 2007 (see Appendix C. (B) Background: This guideline implements the directive to the Commission in section 103 of Public Law 110–407.S. 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.

(1) If the defendant knew or should have known that a victim of the offense was a vulnerable victim. Subsection (a) applies to offenses that are hate crimes. ethnicity.ADJUSTMENTS PART A . If (A) subdivision (1) applies. disability.VICTIM-RELATED ADJUSTMENTS Introductory Commentary The following adjustments are included in this Part because they may apply to a wide variety of offenses. and (B) the offense involved a large number of vulnerable victims. color. 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. (b) (2) (c) Special Instruction (1) Subsection (a) shall not apply if an adjustment from §2H1. or sexual orientation of any person. §3A1.1. 2.3 – 339 – . 2009 GUIDELINES MANUAL §3A1. increase by 3 levels. 1987. national origin. in the case of a plea of guilty or nolo contendere. increase by 2 levels. Note that special evidentiary requirements govern the application of this subsection.1(b)(1) applies.1(b)(1) applies. Do not apply subsection (a) on the basis of gender in the case of a sexual offense. Commentary Application Notes: 1. 1990 (see Appendix C. religion.November 1. increase the offense level determined under subdivision (1) by 2 additional levels. Amended effective November 1. In such cases. "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. Moreover. do not apply subsection (a) if an adjustment from §2H1. amendment 344). Historical Note: Effective November 1. this factor is taken into account by the offense level of the Chapter Two offense guideline.1 CHAPTER THREE . Hate Crime Motivation or Vulnerable Victim (a) If the finder of fact at trial or. For purposes of subsection (b). gender.

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

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

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

but if the resulting offense level is less than level 32.— Under subsection (b). the adjustment provided by this guideline applies only to federal crimes of terrorism. and Obstruction Offenses. Computation of Criminal History Category. amendments 249 and 250). an offense other than one of the offenses specifically enumerated in 18 U. – 343 – . amendment 413). increase by 12 levels. In each such case. § 2339 or § 2339A). shall be considered to have involved. 4. "federal crime of terrorism" has the meaning given that term in 18 U. 1989 (see Appendix C.S. if the defendant’s criminal history category as determined under Chapter Four (Criminal History and Criminal Livelihood) is less than Category VI. In such cases an upward departure would be warranted. or (B) the offense involved. Upward Departure Provision. Amended effective November 1.November 1. or (B) obstructing an investigation of a federal crime of terrorism. § 2332b(g)(5).C. but the terrorist motive was to intimidate or coerce a civilian population. 1991 (see Appendix C. or was intended to promote. 2009 GUIDELINES MANUAL §3A1. that federal crime of terrorism. (b) Commentary Application Notes: 1. § 2332b(g)(5)(B). "Federal Crime of Terrorism" Defined.—For purposes of this guideline. Unlawful Restraint)). or was intended to promote. Abduction.—For purposes of this guideline. except that the sentence resulting from such 2. an upward departure may be warranted. rather than to influence or affect the conduct of government by intimidation or coercion. the defendant’s criminal history category from Chapter Four (Criminal History and Criminal Livelihood) shall be Category VI. Terrorism (a) If the offense is a felony that involved.4 adjustment does not apply to offenses covered by §2A4. an offense that involved (A) harboring or concealing a terrorist who committed a federal crime of terrorism (such as an offense under 18 U. November 1. there may be cases in which (A) the offense was calculated to influence or affect the conduct of government by intimidation or coercion.S. or to have been intended to promote.—By the terms of the directive to the Commission in section 730 of the Antiterrorism and Effective Death Penalty Act of 1996. or to retaliate against government conduct. §3A1. § 2332b(g)(5)(B). Harboring. a federal crime of terrorism. See §5K2.C. increase to level 32.C. Concealing.S. 3. If the restraint was sufficiently egregious.4 (Abduction or Unlawful Restraint).1 (Kidnapping. 1987. 3. Historical Note: Effective November 1.4.S. one of the offenses specifically enumerated in 18 U.C. However. or was intended to promote. or to retaliate against government conduct but the offense involved. it shall be increased to Category VI.

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

(b) (c) Commentary Application Notes: 1. an undercover law enforcement officer) is not a participant. i.2 (or neither) may apply. When an offense is committed by more than one participant.3(a)(1)-(4). all conduct included under §1B1. To qualify for an adjustment under this section. Section 3B1. manager. but need not have been convicted. amendment 345).e. amendment 456). 1992 (see Appendix C. but who nevertheless exercised management responsibility over the property. 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. lead. however. 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.3 may apply to offenses committed by any number of participants. or activities of a criminal organization. A person who is not criminally responsible for the commission of the offense (e.November 1. increase by 3 levels. increase by 4 levels. in the case of a defendant who did not organize. November 1. assets. or supervise another participant. 1990 (see Appendix C. increase by 2 levels. or supervisor in any criminal activity other than described in (a) or (b).1 PART B . §3B1. An upward departure may be warranted. the defendant must have been the organizer.1 or §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. If the defendant was an organizer.3 (Relevant Conduct). 2009 GUIDELINES MANUAL §3B1. manage.. – 345 – . and not solely on the basis of elements and acts cited in the count of conviction. leader. 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. manager. or supervisor of one or more other participants. Amended effective November 1. 2.1. §3B1. 1987.g. A "participant" is a person who is criminally responsible for the commission of the offense. Aggravating Role Based on the defendant’s role in the offense. Historical Note: Effective November 1. leader..

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

the court.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.3 only for the quantity of drugs the defendant personally transported or stored is not precluded from consideration for an adjustment under this guideline. For example. 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. "participant" has the meaning given that term in Application Note 1 of §3B1. 3. in weighing the totality of the circumstances. (C) – 347 – . Requirement of Multiple Participants.—For purposes of this guideline. 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. 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. A defendant who is accountable under §1B1. Applicability of Adjustment. involves a determination that is heavily dependent upon the facts of the particular case. is not required to find.—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. 2.2 Commentary Application Notes: 1. Attempt or Conspiracy)). a defendant who is convicted of a drug trafficking offense.—The determination whether to apply subsection (a) or subsection (b).—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. As with any other factual issue.1 (Aggravating Role).—This guideline is not applicable unless more than one participant was involved in the offense. See the Introductory Commentary to this Part (Role in the Offense). (B) Conviction of Significantly Less Serious Offense. Importing.1 (Unlawful Manufacturing. that such a role adjustment is warranted.— (A) Substantially Less Culpable than Average Participant. based solely on the defendant’s bare assertion. 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. Exporting.November 1. Accordingly. For example. or Trafficking (Including Possession with Intent to Commit These Offenses). 2009 GUIDELINES MANUAL §3B1. Fact-Based Determination. or an intermediate adjustment. whose role in that offense was limited to transporting or storing drugs and who is accountable under §1B1. Attempt or Conspiracy)) is convicted of simple possession of cocaine (an offense having a Chapter Two offense level of level 6 under §2D2.1 (Unlawful Possession. Definition.

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

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

Amended effective November 1.5. amendment 540). 1990 (see Appendix C. effective November 1. If the defendant used or attempted to use more than one person less than eighteen years of age. amendment 677). 1998 (see Appendix C. A former §3B1. §3B1. increase by 4 levels. or apprehension for. 1987. or in an attempt to avoid apprehension for the offense. 1989 (see Appendix C. amendment 527). the offense. 3. Do not apply this adjustment if the Chapter Two offense guideline incorporates this factor. (2) – 350 – . encouraging. 1995 (see Appendix C.3 GUIDELINES MANUAL November 1. Amended effective November 1. 1996 (see Appendix C. 2005 (see Appendix C. an upward departure may be warranted. Historical Note: Effective November 1. 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. training. increase by 2 levels. in fact. they do not.§3B1. amendment 492). amendment 726). §3B1. or the defendant used body armor during the commission of the offense. amendment 527). November 1. November 1. November 1. procuring. Historical Note: Effective November 1. 1993 (see Appendix C. 2009 (see Appendix C. intimidating. 2. amendment 580). amended effective November 1. commanding. Such persons generally are viewed as more culpable.4 (untitled). "Used or attempted to use" includes directing. amendment 303). or soliciting. amendment 346). and (apply the greater)— (A) (B) the offense involved the use of body armor. Commentary Application Notes: 1. 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.4. amendment 617). in preparation for the offense. increase by 2 levels. 1987. counseling. 2001 (see Appendix C. 1995 (see Appendix C. November 1. 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. was deleted effective November 1. November 1. recruiting. 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.

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. 2. § 921(a)(35). amendment 659). counseled.—If the defendant is convicted only of 18 U. Amended effective November 1. commanded. 107–273).—Consistent with §1B1. and (B) used the body armor with respect to that offense. limits the accountability of the defendant to the defendant’s own conduct and conduct that the defendant aided or abetted.S. "Used" means put into "use" as defined in this paragraph. 3.3 (Relevant Conduct). or Owning Body Armor by Violent Felons). Definitions. § 924(c)(2). "Use" does not mean mere possession (e. regardless of whether the product is to be worn alone or is sold as a complement to another product or garment. – 351 – . L. See 18 U.6 (Possessing. 2003 (see Appendix C. "Offense" has the meaning given that term in Application Note 1 of the Commentary to §1B1.November 1. induced. Historical Note: Effective November 1. an adjustment under this guideline shall apply with respect to that offense. Purchasing. procured. "Drug trafficking crime" has the meaning given that term in 18 U. for purposes of subdivision (2)(B). or willfully caused.C. 2009 GUIDELINES MANUAL §3B1.. amendment 670).C. However.1 (Application Instructions). "use" does not mean that the body armor was found in the trunk of the car but not used actively as protection).C. 2004 (see Appendix C. "Use" means (A) active employment in a manner to protect the person from gunfire.—For purposes of this guideline: "Body armor" means any product sold or offered for sale. if. Interaction with §2K2. as personal protective body covering intended to protect against gunfire. Pub. § 16.S.S. in addition to the count of conviction under 18 U. the term "defendant".C. "Crime of violence" has the meaning given that term in 18 U.6 and Other Counts of Conviction.g.S. the defendant (A) is convicted of an offense that is a drug trafficking crime or a crime of violence. Application of Subdivision (2)(B).S.C. § 931. § 931 and receives an enhancement under subsection (b)(1) of §2K2. in interstate or foreign commerce.5 Commentary Application Notes: 1. or (B) use as a means of bartering. do not apply an adjustment under this guideline.

mistake. 2009 PART C . Commentary Application Notes: 1.OBSTRUCTION AND RELATED ADJUSTMENTS Historical Note: Effective November 1. to thwart the investigation or prosecution of the offense of conviction. amendment 684). Amended effective November 1. and (B) the obstructive conduct related to (i) the defendant’s offense of conviction and any relevant conduct. and (B) related to (i) the defendant’s offense of conviction and any relevant conduct. Limitations on Applicability of Adjustment. refusal to admit guilt or provide information to a probation officer. Application Note 5 sets forth examples of less serious forms of conduct to which this enhancement is not intended to apply. but that ordinarily can appropriately be sanctioned by the determination of the particular sentence within the otherwise applicable guideline range. or sentencing of the instant offense of conviction. or sentencing of the defendant’s instant offense of conviction. such as that of a co-defendant. prosecution. Obstructing or Impeding the Administration of Justice If (A) the defendant willfully obstructed or impeded. degree of planning. and likely. – 352 – . the court should be cognizant that inaccurate testimony or statements sometimes may result from confusion. In applying this provision in respect to alleged false testimony or statements by the defendant. 1987. or attempted to obstruct or impede. 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. prosecution.—Obstructive conduct can vary widely in nature. the administration of justice with respect to the investigation.—This adjustment applies if the defendant’s obstructive conduct (A) occurred with respect to the investigation. or faulty memory and. or (ii) an otherwise closely related case. A defendant’s denial of guilt (other than a denial of guilt under oath that constitutes perjury).§3C1.1 GUIDELINES MANUAL November 1.1. Application Note 4 sets forth examples of the types of conduct to which this adjustment is intended to apply. or (ii) a closely related offense. Although the conduct to which this adjustment applies 3. In General. and seriousness. Covered Conduct Generally. 2006 (see Appendix C. thus. increase the offense level by 2 levels. or refusal to enter a plea of guilty is not a basis for application of this provision. §3C1. 2.—This provision is not intended to punish a defendant for the exercise of a constitutional right. not all inaccurate testimony or statements necessarily reflect a willful attempt to obstruct justice.

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

providing incomplete or misleading information. however. making false statements. lying to a probation or pretrial services officer about defendant’s drug use while on pretrial release. unless Application Note 4(g) above applies. "Material" Evidence Defined. Examples of Conduct Ordinarily Not Covered. prosecution. fact. (b) (c) (d) (e) 6. although such conduct may be a factor in determining whether to reduce the defendant’s sentence under §3E1.2 (Reckless Endangerment During Flight)).S. would tend to influence or affect the issue under determination.. or sentencing of the instant offense where there is a separate count of conviction for such conduct. §2X3. this adjustment will apply and increase the offense level for the underlying offense (i. or information. 5. Bribery of Witness). §2J1. § 1621 (Perjury generally)) and 7.1 (Contempt).g. §2J1. or information that. 8. not amounting to a material falsehood. However. § 3146 (Penalty for failure to appear). See Application Note 8. this adjustment is not to be applied to the offense level for that offense except if a significant further obstruction occurred during the investigation..C. 18 U.3 (Perjury or Subornation of Perjury. 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.2(c). §2J1. to law enforcement officers. as used in this section. except where such conduct actually resulted in a significant hindrance to the investigation or prosecution of the instant offense.—If the defendant is convicted both of an obstruction offense (e. if the defendant threatened a witness during the course of the prosecution for the obstruction offense).1 (Acceptance of Responsibility)).g.1 (Acceptance of Responsibility).2 (Obstruction of Justice). or sentencing of the obstruction offense itself (e. avoiding or fleeing from arrest (see. §3E1. statement. 2009 This adjustment also applies to any other obstructive conduct in respect to the official investigation.5 (Failure to Appear by Material Witness)..—"Material" evidence. Inapplicability of Adjustment in Certain Circumstances.§3C1.9 (Payment to Witness). if believed. means evidence.C.. or §2X4. below. – 354 – .6 (Failure to Appear by Defendant). 18 U. §3C1. in respect to a presentence investigation. if the defendant is convicted of a separate count for such conduct. §2J1.1 (Accessory After the Fact).g. Grouping Under §3D1. statement.—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. §2J1.1 (Misprision of Felony).1 GUIDELINES MANUAL November 1. fact. the offense with respect to which the obstructive conduct occurred). prosecution. not under oath.S.e.—If the defendant is convicted of an offense covered by §2J1.

2004 (see Appendix C. 1997 (see Appendix C. November 1. 3. 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. 2009 GUIDELINES MANUAL §3C1. November 1.3(a)(1)(A) Conduct. amendment 637). 1987. November 1. amendment 415). procured. the defendant is accountable for his own conduct and for conduct that he aided or abetted. 1992 (see Appendix C. 2006 (see Appendix C. – 355 – . whichever is greater.4 (Involuntary Manslaughter). where a higher degree of culpability was involved. 2. amendment 496). this adjustment also is applicable where the conduct occurs in the course of resisting arrest. induced. amendments 251 and 252).November 1. 1990 (see Appendix C. November 1. Therefore. November 1. amendment 674). amendment 457). amendment 566). commanded. 2002 (see Appendix C. procured. or willfully caused.2 an underlying offense (the offense with respect to which the obstructive conduct occurred).2 (Groups of Closely Related Counts). except a participant in the offense who willingly participated in the flight. Historical Note: Effective November 1. November 1. or the offense level for the obstruction offense. or another adjustment in Chapter Three. 9. Amended effective November 1. the defendant is accountable for his own conduct and for conduct that he aided or abetted. However. 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. and 582). 5. increase by 2 levels. November 1. amendment 347). results in an equivalent or greater increase in offense level solely on the basis of the same conduct. induced. 1998 (see Appendix C. 1991 (see Appendix C. an upward departure above the 2-level increase provided in this section may be warranted. For the purposes of this guideline. amendment 693). "reckless" means that the conduct was at least reckless and includes any higher level of culpability.—Under this section. or willfully caused. "Another person" includes any person. Commentary Application Notes: 1. "Reckless" is defined in the Commentary to §2A1. November 1. counseled. §3C1. amendments 579. Under this section. 4. Do not apply this enhancement where the offense guideline in Chapter Two. November 1. 581. "During flight" is to be construed broadly and includes preparation for flight. the count for the obstruction offense will be grouped with the count for the underlying offense under subsection (c) of §3D1. 1989 (see Appendix C. Accountability for §1B1. commanded. 1993 (see Appendix C.2. counseled.

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

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

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

Procedure for Determining Offense Level on Multiple Counts (a) When a defendant has been convicted of more than one count.S. Amended effective November 1.S.g.g. 1987. or otherwise contain provisions dealing with repetitive or ongoing misconduct (e. counts can be (A) contained in the same indictment or information..1 involved (e. Sentences for such counts are governed by the provisions of §5G1. 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. November 1.5 the following: (1) Any count for which the statute (A) specifies a term of imprisonment to be imposed. independent instances of assault or robbery). 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. (3) As to other offenses (e. In General. fraud.2 (Sentencing on Multiple Counts of Conviction) for guidance on how sentences for multiple counts of conviction under 18 U.2. 2009 GUIDELINES MANUAL §3D1. § 1028A. See Application Note 2(B) of the Commentary to §5G1.—For purposes of sentencing multiple counts of conviction. and use only the offense level for the most serious offense in that group. and (B) requires that such term of imprisonment be imposed to run consecutively to any other term of imprisonment. amendment 707). 2007 (see Appendix C. (2) Commentary Application Notes: 1. amendment 121). Determine the combined offense level applicable to all Groups taken together by applying the rules specified in §3D1.2-3D1. §3D1. theft. group them together for purposes of the multiple-count rules.. Determine the offense level applicable to each Group by applying the rules specified in §3D1.2(a). 1989 (see Appendix C.C. Any count of conviction under 18 U. add the numerical quantities and apply the pertinent offense guideline. (2) When offenses are closely interrelated.. many environmental offenses).4. firearms dealing). (2) (3) (b) Exclude from the application of §§3D1. – 359 – .November 1. Historical Note: Effective November 1. drug trafficking. including any specific offense characteristics for the conduct taken as a whole.1.g.C. § 1028A should be imposed.3. or (B) contained in different indictments or informations for which sentences are to be imposed at the same time or in a consolidated proceeding.

After any adjustments from Chapter 3. amendment 707) .C.g. The two counts are not grouped together pursuant to this guideline..g. Chapter Five (Determining the Sentence) discusses how to determine the sentence from the (combined) offense level.C. November 1.e. Historical Note: Effective November 1. 2000 (see Appendix C.C. 18 U.C. § 2113).. and. Amended effective November 1. However.§3D1. Part E (Acceptance of Responsibility) and Chapter 4. 1987. The multiple count rules set out under this Part do not apply to a count of conviction covered by subsection (b). November 1.1 (Robbery) is computed without application of the enhancement for weapon possession or use as otherwise required by subsection (b)(2) of that guideline.S.C. See §5G1. 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. See.S. amendment 579). § 924(c). § 924(a)(4) (regarding penalty for 18 U.C. § 3146 (Penalty for failure to appear). 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. 2007 (see Appendix C.S. 1990 (see Appendix C. e.2. the mandatory minimum five-year sentence on the weapon-use count runs consecutively to the guideline sentence imposed on the bank robbery count.S. to run consecutively). For example. – 360 – .2(a). 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. this combined offense level is used to determine the guideline sentence range.. and one count of use of a firearm in the commission of a crime of violence (18 U. amendment 348).S.S.1 2. Part B (Career Offenders and Criminal Livelihood) are made. § 1791(c) (penalty for providing or possessing a controlled substance in prison). 2005 (see Appendix C. Accordingly. Background: This section outlines the procedure to be used for determining the combined offense level. amendment 598). a count covered by subsection (b)(1) may affect the offense level determination for other counts. See. e. November 1. § 922(q) (possession or discharge of a firearm in a school zone)). GUIDELINES MANUAL November 1. the multiple count rules set out under this Part do apply to a count of conviction under this type of statute.S. based on the conduct involved.S. 18 U. to avoid unwarranted double counting. November 1. 1998 (see Appendix C. Unless specifically instructed. the offense level for the bank robbery count under §2B3. § 924(c) (requiring mandatory minimum terms of imprisonment. §5G1.C. 18 U. the statute does not otherwise require a term of imprisonment to be imposed). Groups of Closely Related Counts All counts involving substantially the same harm shall be grouped together into a single Group.2 deals specifically with determining the sentence of imprisonment when convictions on multiple counts are involved. a defendant is convicted of one count of bank robbery (18 U. and (B) requires that such term of imprisonment be imposed to run consecutively to any other term of imprisonment.C. 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. 18 U. amendments 677 and 680). §3D1. § 924(c)). 2009 Subsection (b)(1) applies if a statute (A) specifies a term of imprisonment to be imposed. Pursuant to 18 U.

Part A (except §2A3. 2D1.1.4. 2B2. §2R1.1. 2H4. Offenses covered by the following guidelines are to be grouped under this subsection: §2A3.2.3. §§2D1. §2K2.7.1. 2T1. §§2L2.4.1. 2T1. 2P1.11.3.1. 2H2. 2E1. grouping under this subsection may or may not be appropriate.1.3. Exclusion of an offense from grouping under this subsection does not necessarily preclude grouping under another subsection. §§2T1. §§2L1.3. 2B5. §§2C1. §§2E4.4. 2G3. 2B5.5.1.November 1. (d) – 361 – .5. 2M3.3.1. §§2P1.5.9. 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. 2M3. 2M3. 2M3. 2009 GUIDELINES MANUAL §3D1. §§2G1.1. 2B1. §§2B1.5.1. 2T2. For multiple counts of offenses that are not listed. 2T1. 2M3.1.1.1.1.13.3. or other adjustment to.9. §§2E1. 2B1. or if the offense behavior is ongoing or continuous in nature and the offense guideline is written to cover such behavior.2. 2M2. 2D2.1.1. 2D1. §2Q2.1.1. 2E2. 2D1. 2L2.6.5).1. Specifically excluded from the operation of this subsection are: all offenses in Chapter Two.1.5. 2C1. §§2B2.1. 2B3. 2L2. 2G2.2. §§2M2.4.3.1.1. §§2D2. §2N3. §§2H1.3. 2D1.1.1.1. 2T1. §2X6. §§2S1. 2P1.1.1. 2S1. 2B3.5. the quantity of a substance involved. 2B3. §2C1. 2M3.2. 2T3.2. 2C1. or some other measure of aggregate harm.2. 2E5.2 (c) When one of the counts embodies conduct that is treated as a specific offense characteristic in.2.2. 2B4.3. the guideline applicable to another of the counts.1.1.1. 2D2.8. When the offense level is determined largely on the basis of the total amount of harm or loss.1. 2B6. §§2G2.

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

g. robbery of the same victim on different occasions involves multiple.g. This provision does not authorize the grouping of offenses that cannot be considered to represent essentially one composite harm (e. even if they constitute legally distinct offenses occurring at different times. The counts are not to be grouped together. Of course. bodily injury or obstruction of justice. The bodily injury (the harm from the assault) would not be a specific offense characteristic to the robbery and would represent a different harm. the assault with serious bodily injury would be – 363 – . (4) The defendant is convicted of two counts of distributing a controlled substance. This provision prevents "double counting" of offense behavior. a finding is made that there are two other sales. Frequently. In such cases. The counts are to be grouped together. the count represented by that conduct is to be grouped with the count to which it constitutes an aggravating factor.3(a)(2). e. the counts will be grouped together under subsection (b).November 1.2 grouped together. which represents a Chapter Three adjustment and involves a different harm or societal interest than the underlying offense. The counts are to be grouped together. this provision will overlap subsection (a).. The counts are to be grouped together.. each involving 10 grams of cocaine. The two counts will then be grouped together under either this subsection or subsection (d) to avoid double counting. for example. if in a robbery of a credit union on a military base the defendant is also convicted of assaulting two employees. (2) The defendant is convicted of two counts of mail fraud and one count of wire fraud. 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. also part of the common scheme or plan. On the other hand. each in furtherance of a single fraudulent scheme. is also a specific offense characteristic in or other adjustment to another count. this rule applies only if the offenses are closely related. not one composite harm). only the count representing the most serious of those factors is to be grouped with the other count. The total amount of all four sales (40 grams of cocaine) will be used to determine the offense level for each count under §1B1. It is not. separate instances of fear and risk of harm. at least with respect to specific offense characteristics. 2009 GUIDELINES MANUAL §3D1. but the guideline for the more serious count provides an adjustment for only one occurrence of that factor. In addition. is covered by subsection (c) even though it is not covered by subsection (a). a count such as obstruction of justice. Sometimes there may be several counts. one of whom is injured seriously. (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. But: (5) The defendant is convicted of two counts of rape for raping the same person on different days. 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. 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. each count involving a separate sale of 10 grams of cocaine that is part of a common scheme or plan. However. For example. even if the mailings and telephone call occurred on different days. Subsection (c) provides that when conduct that represents a separate count. each of which could be treated as an aggravating factor to another more serious count. 5. 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.

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

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

as with a count for an attempt or conspiracy to commit the completed offense. 617. 1988 (see Appendix C.2(d). 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. Note that guidelines for similar property offenses have been coordinated to produce identical offense levels. amendment 664). November 1. 2005 (see Appendix C. 1998 (see Appendix C. 2001 (see Appendix C. If the counts in the Group are covered by different guidelines. amendment 701). amendment 496). B and C of Chapter Three. amendment 579). Amended effective June 15. Ordinarily. 1992 (see Appendix C.§3D1. 2004 (see Appendix C. . 253-256. 2009 interpreting this Part and resolving ambiguities. determined in accordance with Chapter Two and Parts A. November 1. 1993 (see Appendix C. 2003 (see Appendix C. 1990 (see Appendix C. amendment 656). November 1. it will be clear that one count in the Group cannot have a higher offense level than another. When the counts involve offenses of the same general type to which different guidelines apply. 1991 (see Appendix C. November 1. and C of Chapter Three. Historical Note: Effective November 1. amendment 458). B. 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. B. amendment 534). the court should look to the underlying policy of this Part as stated in the Introductory Commentary. When counts are grouped pursuant to §3D1. Commentary (b) Application Notes: 1. November 1. 1996 (see Appendix C.. 1987.2 GUIDELINES MANUAL November 1. January 25. In the case of counts grouped together pursuant to §3D1.2(a)-(c). amendments 679 and 680). November 1. use the guideline that produces the highest offense level. for the most serious of the counts comprising the Group. 1989 (see Appendix C. and C apply based upon the combined offense behavior taken as a whole. amendment 648). amendment 417). apply the offense guideline that produces the highest offense level. 2007 (see Appendix C. and 349). amendment 45). The formal determination of the offense level for such a count may be unnecessary. and 303). November 1. November 1. amendments 309. the highest offense level of the counts in the Group. November 1. and 634). November 1. November 1. Sometimes. i. The "offense level" for a count refers to the offense level from Chapter Two after all adjustments from Parts A. the offense guideline applicable to the aggregate behavior is used. amendments 121. amendment 638). November 1. 2002 (see Appendix C. When counts are grouped pursuant to §3D1. 3. §3D1. November 1. 2003 (see Appendix C. B.e. and C of Chapter Three.2(d).2(a)-(c). the offense level applicable to a Group is the offense level corresponding to the aggregated quantity. determined in accordance with Chapter Two and Parts A. Determine whether the specific offense characteristics or adjustments from Chapter Three. amendment 538). 348. Parts A. 1995 (see Appendix C. the highest offense level of the counts in the group is used. at least when substantial property losses are involved. November 1. However.3. when small sums are involved the differing specific offense – 366 – 2. amendments 615. the offense level applicable to a Group is the offense level.

4 characteristics that require increasing the offense level to a certain minimum may affect the outcome. 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 . Historical Note: Effective November 1. Count one additional Unit for each Group that is equally serious or from 1 to 4 levels less serious.1) includes the most common aggravating factors. an exceptionally large property loss in the course of the rape would provide grounds for an upward departure.2. 4. In determining the number of Units for purposes of this section: (a) Count as one Unit the Group with the highest offense level. aggravated assault. Background: This section provides rules for determining the offense level associated with each Group of Closely Related Counts. The aggravated assault will increase the guideline range for the rape. which is fairly wide. if the defendant commits forcible criminal sexual abuse (rape).November 1. The robbery. amendment 617). The additional factor of property loss ordinarily can be taken into account adequately within the guideline range for rape. See §5K2. Sometimes the rule specified in this section may not result in incremental punishment for additional criminal acts because of the grouping rules. all of the counts are grouped together under §3D1.5 (Property Damage or Loss). Such Groups will not increase the applicable offense level – 367 – (b) (c) . However. Amended effective November 1. will not. amendment 674). Disregard any Group that is 9 or more levels less serious than the Group with the highest offense level. that data showed to be significant in actual practice. including injury. For example. November 1. 2004 (see Appendix C. 2009 GUIDELINES MANUAL §3D1. amendments 257 and 303). Summary examples of the application of these rules are provided at the end of the Commentary to this Part. November 1. §3D1. all against the same victim on a single occasion. 2001 (see Appendix C. 1987. 1989 (see Appendix C. however.4.3 3 1/2 . This is because the offense guideline for rape (§2A3.5 More than 5 Increase in Offense Level none add 1 level add 2 levels add 3 levels add 4 levels add 5 levels. and robbery. Count as one-half Unit any Group that is 5 to 8 levels less serious than the Group with the highest offense level.

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

3(a). The first count translates into 46 kilograms of marihuana. In the fourth robbery $12. Because the conduct constituting the bribery offense is accounted for by §3C1.000 to avoid prosecution. Determining the Total Punishment Use the combined offense level to determine the appropriate sentence in accordance with the provisions of Chapter Five. The combined offense level is 28 pursuant to §3D1. this offense level is increased by 2 levels to 28 under §3C1. converted to marihuana equivalents (using the Drug Equivalency Tables in the Commentary to §2D1. Importing. Part B (Career Offenders and Criminal Livelihood).4. step-by-step approach is recommended until the user is thoroughly familiar with the guidelines. (4) offering a DEA agent $20. because the offense level for bribery (22) is less than the offense level for the drug offenses (28).5 §3D1.1 (Unlawful Manufacturing. Defendant C was convicted on four counts: (1) distribution of 230 grams of cocaine. it becomes part of the same Group as the drug offenses pursuant to §3D1. The combined offense level is 31. each of the first three represents one-half unit for purposes of §3D1. a more thorough. In addition. Altogether there are 2 1/2 Units. the combined offense level for the drug offenses is 26. Defendant A was convicted on four counts. (2) distribution of 150 grams of cocaine. the offense level was therefore 28.1 (Obstructing or Impeding the Administration of Justice). 1987. * * * * * Illustrations of the Operation of the Multiple-Count Rules The following examples. drawn from presentence reports in the Commission’s files. The examples are discussed summarily. and the third count translates into 75 kilograms of marihuana. or Trafficking)). the second count translates into 30 kilograms of marihuana. Under §2D1. illustrate the operation of the guidelines for multiple counts.1. In each of the first three robberies. Historical Note: Effective November 1. 2009 GUIDELINES MANUAL §3D1. (3) distribution of 75 grams of heroin. because of the attempted bribe of the DEA agent. Exporting.5. The combined offense level for drug offenses is determined by the total quantity of drugs.1.1(b)). As the first three counts are 6 levels lower than the fourth.November 1. The combined offense level is subject to adjustments from Chapter Three. . each charging robbery of a different bank.2(c). the offense level was 22 (20 plus a 2-level increase because a financial institution was robbed) (§2B3. and the offense level for the most serious (28) is therefore increased by 3 levels under the table. Each would represent a distinct Group. §3D1.000 was taken and a firearm was displayed. Part E (Acceptance of Responsibility) and Chapter Four. 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. – 369 – 2.2. 1. The total is 151 kilograms of marihuana.

1. amendment 617).1 (assuming the application of the "sophisticated means" enhancement in §2B1. amendment 303). which results in an offense level of 16 under either §2B1. GUIDELINES MANUAL November 1. The total money involved is $74. (4) The defendant received $20. Amended effective November 1. which treats the offense as a sophisticated fraud. November 1. 2001 (see Appendix C. 1987.000.1(b)(9)) or §2B4. 2009 (see Appendix C. The mail fraud counts are covered by §2B1.1 (Theft. 1990 (see Appendix C. November 1. 1995 (see Appendix C. amendment 417). Historical Note: Effective November 1. Property Destruction.§3D1. amendment 534). and Fraud). 1991 (see Appendix C.000 from subcontractor A relating to contract X (Mail Fraud). 1989 (see Appendix C. 2009 Defendant D was convicted of four counts arising out of a scheme pursuant to which the defendant received kickbacks from subcontractors. November 1. The bribery counts are covered by §2B4.000 from subcontractor A relating to contract Y (Mail Fraud). The counts were as follows: (1) The defendant received $27.1 (Bribery in Procurement of Bank Loan and Other Commercial Bribery). the combined offense level is 16. amendment 350).5 3. November 1.000 from subcontractor B relating to contract Z (Commercial Bribery). (2) The defendant received $12. (3) The defendant received $15. – 370 – . Since these two guidelines produce identical offense levels.000 from subcontractor A relating to contract X (Commercial Bribery). amendment 737). November 1.

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

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

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

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

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

See §4A1. Sentences for certain specified non-felony offenses are counted only if they meet certain requirements. (i). See §4A1.2(e). and the Commentary to §4A1. The term "prior sentence" is defined at §4A1. See §4A1.2.1(d).2(a).1(a) or (b). §4A1. §4A1. Sentences for certain specified non-felony offenses are never counted. or an invalid conviction. and the Commentary to §4A1.2(n).2(d).2. A military sentence is counted only if imposed by a general or special court martial. For the purposes of this item.2(c)(1). including probation.2(c)(2). Sentences for certain specified non-felony offenses are never counted.2(f). although active supervision is not required for this item – 376 – . Two points are added if the defendant committed any part of the instant offense (i.2(c)(2).2(g). parole. a "criminal justice sentence" means a sentence countable under §4A1.e. a tribal court conviction. See §4A1. imprisonment. See §4A1. an expunged conviction. One point is added for each prior sentence not counted under §4A1. A diversionary disposition is counted only where there is a finding or admission of guilt in a judicial proceeding. 3. is not counted. Certain prior sentences are not counted or are counted only under certain conditions: A sentence imposed more than ten years prior to the defendant’s commencement of the instant offense is not counted. See §4A1. 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. (j). A sentence for a foreign conviction. Failure to report for service of a sentence of imprisonment is to be treated as an escape from such sentence. See §4A1. A maximum of four points may be counted under this item. See §4A1.2(h).2 (Definitions and Instructions for Computing Criminal History) having a custodial or supervisory component. See §4A1. See §4A1. (i).. A military sentence is counted only if imposed by a general or special court martial.2(g). 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. work release. A sentence for a foreign conviction or a tribal court conviction. See §4A1. any relevant conduct) while under any criminal justice sentence. (j). an expunged conviction. or an invalid conviction is not counted.1(c).2(h). supervised release. 4. See §4A1.2(d).§4A1.1 GUIDELINES MANUAL November 1. or escape status.

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

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

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

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

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

§4A1. a conviction for which the defendant has not yet been sentenced is treated as if it were a prior sentence under §4A1. the definition of "crime of violence" is that set forth in §4B1.1(c) if a sentence resulting from such conviction otherwise would have been counted.2(a). (n) Failure to Report for Service of Sentence of Imprisonment For the purposes of §4A1. (c). Under §4A1.§4A1. a conviction for which the defendant has not yet been sentenced is treated as if it were a prior sentence under §4A1. Prior Sentence. a defendant who commits the instant offense while a violation warrant from a prior sentence is outstanding (e. a probation. Commentary Application Notes: 1.1(d).1(e) shall not apply. (m) Effect of a Violation Warrant For the purposes of §4A1.. (b). even if that sentence would have expired absent such warrant.2(c)(1) (which lists certain misdemeanor and petty offenses).1(d) and (e). regardless of the actual sentence imposed.2 (l) GUIDELINES MANUAL November 1. parole. See §4A1. In the case of an offense set forth in §4A1.g. failure to report for service of a sentence of imprisonment shall be treated as an escape from such sentence. Conduct that is part of the instant offense means conduct that is relevant conduct to the instant offense under the provisions of §1B1. §4A1. In the case of a prior sentence. or local offense punishable by death or a term of imprisonment exceeding one year. (d).—"Prior sentence" means a sentence imposed prior to sentencing on the instant offense. a "felony offense" means any federal.2(a). (p) Crime of Violence Defined For the purposes of §4A1.2(a)(4). is a prior sentence if it was for conduct other than conduct that was part of the instant offense. and (f) shall apply as if the execution of such sentence had not been stayed.3 (Relevant Conduct).2(c). A sentence imposed after the defendant’s commencement of the instant offense.1(f). state.1(a).2(a)(4) only where the – 382 – . (o) Felony Offense For the purposes of §4A1. other than a sentence for conduct that is part of the instant offense. but prior to sentencing on the instant offense. the execution of which has been stayed pending appeal. or supervised release violation warrant) shall be deemed to be under a criminal justice sentence if that sentence is otherwise countable. 2009 Sentences on Appeal Prior sentences under appeal are counted except as expressly provided below.

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

however. if any. add the term of imprisonment imposed upon revocation to the sentence that will result in the greatest increase in criminal history points. and the total should be counted as if it were one sentence. criminal conduct. Therefore.2(j). only those that resulted in adult sentences of imprisonment exceeding one year and one month. If the sentence originally imposed. Rather than count the original sentence and the resentence after revocation as separate sentences. Diversionary Dispositions. However. If. ..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 4A1.2(a)(2). 2009 Offenses Committed Prior to Age Eighteen.2(d) covers offenses committed prior to age eighteen. the term "commencement of the instant offense" includes any relevant conduct. Applicable Time Period. the sentence imposed upon revocation. See §1B1." this provision applies to all offenses committed prior to age eighteen. or serious dissimilar. To avoid disparities from jurisdiction to jurisdiction in the age at which a defendant is considered a "juvenile. Example: A defendant was serving two probationary sentences. If the court finds that a sentence imposed outside this time period is evidence of similar. Revocations to be Considered. if any. 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. 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. §4A1. Convictions Set Aside or Defendant Pardoned.2(d)(2) and (e) establishes the time period within which prior sentences are counted. 10.2 7. in order to restore civil rights or to remove the stigma associated with a criminal conviction. no more than three points will be assessed for a single conviction.—Section 4A1. for offenses committed prior to age eighteen.3 (Relevant Conduct).§4A1. 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. Attempting to count every juvenile adjudication would have the potential for creating large disparities due to the differential availability of records.—Section 4A1. As used in §4A1. expunged convictions are not counted. or the total of both sentences exceeded one year and one month. the court may consider this information in determining whether an upward departure is warranted under §4A1.—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. each counted separately under §4A1.3 (Adequacy of Criminal History Category).2(a)(2).