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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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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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November 1, 2009

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Ch. 1 Pt. A

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

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

the same as a single-count indictment charging sale of 300 grams of heroin or theft of $30. or the amount of money actually taken. Including Drug or Alcohol Dependence or Abuse). cross references. –6– . and SocioEconomic Status). Moreover. Religion. one to which a particular guideline linguistically applies but where conduct significantly differs from the norm. 1 Pt. Sex. 2009 for the large number of diverse harms arising in different circumstances. For example.19 (Post-Sentencing Rehabilitative Efforts) list several factors that the court cannot take into account as grounds for departure. such a system risked return to wide disparity in sentencing practice. When a court finds an atypical case. not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. Creed. the guidelines take account of a number of important. The Commission recognized that a charge offense system has drawbacks of its own. 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. the Commission moved closer to a charge offense system. For another.000.000." 18 U. 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. With those specific exceptions. Section 5H1. commonly occurring real offense elements such as role in the offense. (b) Departures. however. or to a degree. each count of which charges sale of 100 grams of heroin or theft of $10.12 (Coercion and Duress). 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. that could constitute grounds for departure in an unusual case. In its initial set of guidelines submitted to Congress in April 1987. a sentencing court may control any inappropriate manipulation of the indictment through use of its departure power. the defendant’s actual conduct (that which the prosecutor can prove in court) imposes a natural limit upon the prosecutor’s ability to increase a defendant’s sentence. A GUIDELINES MANUAL November 1. This system. the third sentence of §5H1. 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. For one thing. Finally. §5H1. quadratic roots and other mathematical operations that the Commission considered too complex to be workable. and §5K2. the presence of a gun. In the Commission’s view. The Commission intends the sentencing courts to treat each guideline as carving out a "heartland. The effort proposed as a solution to these problems required the use of. Furthermore. does contain a significant number of real offense elements. and adjustments. National Origin. § 3553(b).10 (Race. the Commission does not intend to limit the kinds of factors. specific offense characteristics. through alternative base offense levels. the last sentence of §5K2. the Commission will closely monitor charging and plea agreement practices and will make appropriate adjustments should they become necessary. Of course. whether or not mentioned anywhere else in the guidelines." a set of typical cases embodying the conduct that each guideline describes. 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.C. however.S.4 (Physical Condition. the guidelines treat a three-count indictment. for example.Ch.12 (Lack of Guidance as a Youth and Similar Circumstances). the court may consider whether a departure is warranted.

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

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

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

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

1 Pt. Thus. The Commission recognizes that some will criticize this approach as overly cautious. the guidelines will apply to more than 90 percent of all felony and Class A misdemeanor cases in the federal courts. Finally. Again. In doing so. 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. If a money table were to make only a few distinctions.000 augmented presentence reports.000 convictions. whether $10. permit courts to exercise the greatest permissible range of sentencing discretion. Because of time constraints and the nonexistence of – 11 – .000 was obtained as a result of a fraud. it relied upon pre-guidelines sentencing practice as revealed by its own statistical analyses based on summary reports of some 40. works proportionately. Where a table has many small monetary distinctions. are projected to lead to an increase in prison population that computer models. The Commission is a permanent body that can amend the guidelines each year. Each level in the table prescribes ranges that overlap with the ranges in the preceding and succeeding levels. the levels work to increase a sentence proportionately. The Commission has established a sentencing table that for technical and practical reasons contains 43 levels. These tables often have many rather than a few levels. A legislated mandatory minimum or career offender sentences).C. and at the same time preserves the maximum degree of allowable discretion for the court within each level. as representing too little a departure from pre-guidelines sentencing practice. It examined the many hundreds of criminal statutes in the United States Code. The guidelines. By overlapping the ranges. Similarly. in keeping with the statutory requirement that the maximum of any range cannot exceed the minimum by more than the greater of 25 percent or six months (28 U. many of the individual guidelines refer to tables that correlate amounts of money with offense levels. 2009 GUIDELINES MANUAL Ch. for example. § 994(b)(2)). A change of six levels roughly doubles the sentence irrespective of the level at which one starts. the reason is to minimize the likelihood of unnecessary litigation. 5.000 or $11. Yet. At the same time.November 1. little purpose will be served in protracted litigation trying to determine. are imperfect. The table overlaps offense levels meaningfully. the table should discourage unnecessary litigation. A Concluding Note The Commission emphasizes that it drafted the initial guidelines with considerable caution. like all data. the parole guidelines. it will cure wide disparity. estimated at approximately 10 percent over a period of ten years. experience with the guidelines will lead to additional information and provide a firm empirical basis for consideration of revisions.S. a sample of 10. Although the data available to it. it minimizes the likelihood of litigation because the precise amount of money involved is of considerably less importance. and policy judgments. It developed additional distinctions relevant to the application of these provisions and it applied sentencing ranges to each resulting category. each distinction would become more important and litigation over which category an offender fell within would become more likely. (h) The Sentencing Table. It began with those that were the basis for a significant number of prosecutions and sought to place them in a rational order. produced by the Commission and the Bureau of Prisons in 1987.

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

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

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

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

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

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

—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. by denial of food or medical care) would constitute lifethreatening bodily injury. The list of "Statutory Provisions" in the Commentary to each offense guideline does not necessarily include every statute covered by that guideline. only the one that best describes the conduct is to be used. In the case of a kidnapping. for example. or physical rehabilitation. to distinguish the violation for which the defendant is being sentenced from a prior or subsequent offense. displaying. "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. "Physically restrained" means the forcible restraint of the victim such as by being tied.S." is merely illustrative.g. maltreatment to a lifethreatening degree (e.§1B1. commonly known as a "BB" or pellet gun. The term "instant" is used in connection with "offense. (A) Cumulative Application of Multiple Adjustments within One Guideline." as the case may be. some statutes may be covered by more than one guideline. an offense before a state court involving the same underlying conduct)." or "offense of conviction. that uses air or carbon dioxide pressure to expel a projectile is a dangerous weapon but not a firearm. Such definitions are not designed for general applicability. or requiring medical intervention such as surgery. The term "includes" is not exhaustive." "federal offense.1 GUIDELINES MANUAL November 1. in §2A2. or possessing a firearm or other dangerous weapon. organ. § 2241 or § 2242 or any similar offense under state law. or from an offense before another court (e. (I) (J) (K) (L) 2.3 (Relevant Conduct) unless a different meaning is specified or is otherwise clear from the context. the offense level adjustments are alternative.g. however. "Serious bodily injury "means injury involving extreme physical pain or the protracted impairment of a function of a bodily member. "Permanent or life-threatening bodily injury" means injury involving a substantial risk of death. ..2(b)(3).. therefore. 3.C. organ. the term "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. In addition. or mental faculty. bound. hospitalization. or an obvious disfigurement that is likely to be permanent. Definitions of terms also may appear in other sections. "serious bodily injury" is deemed to have occurred if the offense involved conduct constituting criminal sexual abuse under 18 U. In addition. their applicability to sections other than those expressly referenced must be determined on a case by case basis. 2009 destructive device. Within each specific offense characteristic subsection. For example. or mental faculty that is likely to be permanent. pertaining to degree – 18 – 4. A weapon. or locked up.g.

2001 (see Appendix C. determine the offense guideline section in Chapter Two applicable to the stipulated offense. but the guidelines authorize the application of only one such provision. Applicable Guidelines (a) Determine the offense guideline section in Chapter Two (Offense Conduct) applicable to the offense of conviction (i. and determinations may be triggered by the same conduct. and Fraud). the offense conduct charged in the count of the indictment or information of which the defendant was convicted). However. a parenthetical restatement of that other guideline’s heading accompanies the initial reference to that other guideline. – 19 – . Property Damage or Destruction.1 (Larceny. November 1. amendment 1). Where two or more guideline provisions appear equally applicable. 6. such enhancements. November 1. This parenthetical is provided only for the convenience of the reader and is not intended to have substantive effect.1(b)(3) and an official victim adjustment under §3A1. Offenses Involving Stolen Property. enhancements under Chapter Two. §1B1. November 1. In the case of lengthy guideline headings. 1989 (see Appendix C. Use of Abbreviated Guideline Titles. the provision applicable to the discharge of the firearm would be used. even though the enhancement and the adjustment both are triggered by the shooting of the officer.2(b)(2). Historical Note: Effective November 1. adjustments under Chapter Three. Forgery. 5. 1990 (see Appendix C. In some cases. amendments 591 and 601). For example..1 (Theft.—Absent an instruction to the contrary. November 1. Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States) may be abbreviated as follows: §2B1. use the provision that results in the greater offense level. amendment 684). amendment 497). such a parenthetical restatement of the guideline heading may be abbreviated for ease of reference. (B) Cumulative Application of Multiple Adjustments from Multiple Guidelines. amendments 69-72 and 303). 1987. 1997 (see Appendix C. For example. if a firearm is both discharged and brandished. 2000 (see Appendix C. November 1.. 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. 2009 GUIDELINES MANUAL §1B1.g. references to §2B1. amendment 617). Property Destruction. 2003 (see Appendix C. November 1. the subdivision that best describes the level of bodily injury is used.2 of bodily injury. and determinations under Chapter Four are to be applied cumulatively. in §2A2. November 1. adjustments. 1991 (see Appendix C. and Other Forms of Theft. Fraud and Deceit. amendment 388).—Whenever a guideline makes reference to another guideline. amendment 651). E. shooting a police officer during the commission of a robbery may warrant an injury enhancement under §2B3.2. November 1. October 27. 2003 (see Appendix C. 2006 (see Appendix C. Amended effective January 15. 1988 (see Appendix C. amendment 361).2.November 1. November 1. 1993 (see Appendix C. amendments 545 and 546).e. the adjustments for different degrees of bodily injury (subdivisions (A)-(E)) are not added together. amendment 661). Embezzlement.

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

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

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

rather than on whether the defendant is criminally liable for an offense as a principal. scheme. and any other information specified in the applicable guideline. Commentary Application Notes: 1.3 (2) solely with respect to offenses of a character for which §3D1. whether or not charged as a conspiracy. 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. the court must first determine the scope of the criminal activity the particular defendant agreed to jointly undertake (i. all acts and omissions described in subdivisions (1)(A) and (1)(B) above that were part of the same course of conduct or common scheme or plan as the offense of conviction. the criminal activity jointly undertaken by the defendant is relevant conduct under this provision. The conduct of others that was both in furtherance of. (3) (4) (b) Chapters Four (Criminal History and Criminal Livelihood) and Five (Determining the Sentence). or conspirator. all harm that resulted from the acts and omissions specified in subsections (a)(1) and (a)(2) above. In order to determine the defendant’s accountability for the conduct of others under subsection (a)(1)(B).2(d) would require grouping of multiple counts. the scope of the specific conduct and objectives embraced by the defendant’s agreement). the scope of the criminal activity jointly undertaken by the defendant (the "jointly undertaken criminal activity") is not necessarily the same as the scope of the entire conspiracy. The principles and limits of sentencing accountability under this guideline are not always the same as the principles and limits of criminal liability. endeavor. In the case of a jointly undertaken criminal activity.e. and hence relevant conduct is not necessarily the same for every participant. and reasonably foreseeable in connection with. accomplice. and reasonably foreseeable in connection with that criminal activity. 2. 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. the focus is on the specific acts and omissions for which the defendant is to be held accountable in determining the applicable guideline range. and all harm that was the object of such acts and omissions. The conduct of others that was not in – 23 – . A "jointly undertaken criminal activity" is a criminal plan. Under subsections (a)(1) and (a)(2). Because a count may be worded broadly and include the conduct of many participants over a period of time. 2009 GUIDELINES MANUAL §1B1.November 1.. or enterprise undertaken by the defendant in concert with others.

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

of course. Defendant A engaged in a jointly undertaken criminal activity (the scope of which was the importation of the shipment of marihuana). Defendant A is accountable for the entire one-ton shipment of marihuana under subsection (a)(1)(A). The specific circumstances of the case (the defendant was one of ten persons off-loading the marihuana in bales) also support this finding. Therefore. As noted earlier.e. 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 $15.3 entire shipment of marihuana by directly participating in the off-loading of that shipment (i.. the specific objective of the criminal activity he joined was the offloading of the entire shipment). This is conceptually similar to the case of a defendant who transports a suitcase knowing that it contains a controlled substance and. a defendant may be accountable for particular conduct under more than one subsection of this guideline. Defendant A also is accountable for the entire one-ton shipment of marihuana on the basis of subsection (a)(1)(B)(applying to a jointly undertaken criminal activity). he is accountable for the entire shipment under subsection (a)(1)(A) without regard to the issue of reasonable foreseeability.November 1. the taking of money was the specific objective of the jointly undertaken criminal activity). therefore. 2009 GUIDELINES MANUAL §1B1. (b) Acts and omissions aided or abetted by the defendant. As noted in the preceding paragraph. 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). 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). if a defendant’s accountability for particular conduct is established under one provision of this guideline. In certain cases. In an actual case. 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. 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. – 25 – . In this example. a defendant may be accountable for particular conduct under more than one subsection. it is not necessary to review alternative provisions under which such accountability might be established. 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).000 is taken and a teller is assaulted and injured.

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

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

although covered by different statutory provisions. an upward departure may be warranted. as discussed above. and 20 grams of cocaine. it does not limit the scope of subsection (a)(2). As noted above. 4. however.C. or Conspiracy)). "Offenses of a character for which §3D1.0 (Grounds for Departure). If the defendant is convicted of multiple counts for the above noted sales. If the offense guideline includes creating a risk or danger of harm as a specific offense characteristic. the defendant sells 30 grams of cocaine (a violation of 21 U. 5.2(d) would require grouping of multiple counts.2(d). 2009 jointly undertaken criminal activity (and thus the accountability of the defendant for the contraband that was the object of that jointly undertaken activity) may depend upon whether. The two offenses (sale of cocaine and attempted sale of cocaine).S. Unless clearly indicated by the guidelines.g. had the defendant been convicted of both counts. §2B3. 15. See generally §1B1. and Fraud).1 (Attempt. e. the guideline refers only to harm sustained (e. §2B1. Subsection (a)(2) merely incorporates by reference the types of offenses set forth in §3D1. §2Q1. Part D (Multiple Counts) applies to multiple counts of conviction." as used in subsection (a)(2). Application of this provision does not require the defendant.2(d) would require grouping of multiple counts. Property Damage by Use of Explosives). 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.§1B1. thus. the nature of the offense is more appropriately viewed as one jointly undertaken criminal activity or as a number of separate criminal activities.g. §2X1.. subsection (a)(2) applies and the total amount of cocaine (45 grams) involved is used to determine the offense level. §5K2. multiple counts of conviction are not required for subsection (a)(2) to apply. – 28 – .3 GUIDELINES MANUAL November 1. Property Destruction. If.4 (Arson. Solicitation. The defendant is convicted of one count charging the completed sale of 30 grams of cocaine.. Solicitation. or Conspiracy) and the applicable offense guideline. whether that risk or danger was created is to be considered in determining the offense level.1 (Robbery)) or to actual. had the defendant been convicted of multiple counts.1 (Attempt. in fact.S. §2A2. to have been convicted of multiple counts. "Harm" includes bodily injury. where the defendant engaged in three drug sales of 10. attempted or intended harm (e.2(d) would require the grouping of counts. the risk created enters into the determination of the offense level only insofar as it is incorporated into the base offense level. Therefore.g. § 841) on one occasion and. 3. the grouping rules of Chapter Three.2 (Aggravated Assault). property damage and any resulting harm. monetary loss. 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. See. In a case in which creation of risk is not adequately taken into account by the applicable offense guideline. applies to offenses for which grouping of counts would be required under §3D1. §2K1.1 (Theft. in the particular circumstances. subsection (a)(2) applies to offenses of a character for which §3D1.C.2(d) had the defendant been convicted of multiple counts. For example. as part of the same course of conduct or common scheme or plan.. as part of the same course of conduct or common scheme or plan.4 (Information to be Used in Imposing Sentence). attempts to sell an additional 15 grams of cocaine (a violation of 21 U. harm that is merely risked is not to be treated as the equivalent of harm that occurred.2 (Mishandling of Hazardous or Toxic Substances or Pesticides). § 846) on another occasion. Part D (Multiple Counts) provide that the counts are grouped together. are of a character for which §3D1. For example. Although Chapter Three.

g. See Application Note 3(C) of §2S1. 7.C. For example. 8.1 (Laundering of Monetary Instruments. the offense conduct relevant to the state prison sentence is considered as prior criminal history. In the case of a partially completed offense (e. – 29 – .1(c)(1).C. however. 2009 GUIDELINES MANUAL §1B1. that Application Note 4 is not applicable where the offense level is determined under §2X1. or Conspiracy) whether the conviction is for the substantive offense. The instant federal offense (the offense of conviction) charges this latter sale. the inchoate offense (attempt. § 1957.1(b)(2)(B) (which is applicable only if the defendant is convicted under 18 U.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. see §4A1.C. In this example. For example. the offense level is to be determined in accordance with §2X1. 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. or misprision of felony in respect to that particular statute. In this case.1. Unless such an express direction is included.C. The state prison sentence for that sale is not counted as a prior sentence. See Application Note 4 in the Commentary to §2X1. Examples: (1) The defendant was convicted for the sale of cocaine and sentenced to state prison. The prior state prison sentence is counted under Chapter Four (Criminal History and Criminal Livelihood). For the purposes of subsection (a)(2). aiding or abetting. Thus. an offense involving an attempted theft of $800.S. conviction under the statute is not required.000). § 1956(h) and the sole object of that conspiracy was to commit an offense set forth in 18 U. Solicitation.1. use of a statutory reference to describe a particular set of circumstances does not require a conviction under the referenced statute. § 1956) would be applied in determining the offense level under §2X3.S. attempt. he is arrested by state authorities for the first sale and by federal authorities for the second sale. 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. Subsequently. Note.S. he is then convicted in federal court for the second sale. He is convicted in state court for the first sale and sentenced to imprisonment. Therefore.S. solicitation. subsection (b)(2)(B) applies if the defendant "is convicted under 18 U.3 6.. or conspiracy).November 1. § 1956". (2) The defendant engaged in two cocaine sales constituting part of the same course of conduct or common scheme or plan.4(a)(2) ("if the offense was committed by the means set forth in 18 U. § 1956 but would not be applied in a case in which the defendant is convicted of a conspiracy under 18 U. under subsection (a)(2). § 2242"). in §2S1. §2S1.000 and a completed theft of $30. not as part of the same course of conduct or common scheme or plan as the offense of conviction.S. 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.1 (Attempt. Engaging in Monetary Transactions in Property Derived from Unlawful Activity). or both.C. An example of this usage is found in §2A3. Unless otherwise specified.2(a)(1). Immediately upon release from prison. accessory after the fact.S. using the same accomplices and modus operandi.C. he again sold cocaine to the same person. the cocaine sales are not separated by an intervening sentence. the cocaine sale associated with the state conviction is considered as relevant conduct to the instant federal offense.

they must be substantially connected to each other by at least one common factor. not (a)(2). For two or more offenses to constitute part of a common scheme or plan.4 (Information to be Used in Imposing Sentence) governs the range of information that the court may consider in adjudging sentence once the guideline sentencing range has been determined. by the defendant. commonality of offenders (the conduct constituted an ongoing conspiracy). When one of the above factors is absent. the commonality of victims (the same investors were defrauded on an ongoing basis). such conduct will be considered relevant conduct under subsection (a)(1). misprision. In the case of solicitation. Background: This section prescribes rules for determining the applicable guideline sentencing range. The nature of the offenses may also be a relevant consideration (e. in the absence of more explicit instructions in the context of a specific guideline. commonality of purpose (to defraud the group of investors). Unless otherwise provided. 9. 2009 Note. 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). 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. (A) Common scheme or plan. 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. or accessory after the fact. or ongoing series of offenses.§1B1. 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. Same course of conduct. For example. a stronger presence of at least one of the other factors is required.e. which – 30 – . a stronger showing of similarity or regularity is necessary to compensate for the absence of temporal proximity. such as common victims.. For example.. "Common scheme or plan" and "same course of conduct" are two closely related concepts. spree. 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. however. in certain cases.g. or similar modus operandi. the conduct for which the defendant is accountable includes all conduct relevant to determining the offense level for the underlying offense that was known.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. whereas §1B1. and the time interval between the offenses. common purpose. where the conduct alleged to be relevant is relatively remote to the offense of conviction. the range of conduct that is relevant to determining the applicable offense level (except for the determination of the applicable offense guideline. Subsection (a) establishes a rule of construction by specifying. or reasonably should have been known. (B) 10. offense conduct associated with a previously imposed sentence may be expressly charged in the offense of conviction. the regularity (repetitions) of the offenses. common accomplices. i. or similarity of modus operandi (the same or similar computer manipulations were used to execute the scheme).

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

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

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

is the first guideline in the first subpart in Part B of Chapter Two. 1995 (see Appendix C. Significance of Commentary The Commentary that accompanies the guideline sections may serve a number of purposes.2 is the second guideline in the first subpart in Part A of Chapter Three. may warrant departure from the guidelines. 2004 (see Appendix C. §1B1.5 GUIDELINES MANUAL November 1. and the final number is the guideline. November 1. Section 2B1. Each guideline is identified by three numbers and a letter corresponding to the chapter. 2009 firearm during commission of a series of offenses. §3A1. the cross reference at §2K2. and 302). subpart and individual guideline. amendment 616). To illustrate: Historical Note: Effective November 1. amendment 666). 1987. November 1. 2001 (see Appendix C. in the view of the Commission. Or. Failure to follow such commentary could constitute an incorrect application of the guidelines. Second. § 3742. 1991 (see Appendix C. Historical Note: Effective November 1. amendment 429). it may interpret the guideline or explain how it is to be applied. November 1.7. part. November 1. 1987. for example.S. amendments 79. Such commentary is to be treated as the legal equivalent of a policy statement.6. 1992 (see Appendix C. amendment 534). Structure of the Guidelines The guidelines are presented in numbered chapters divided into alphabetical parts. amendment 547). the letter represents the part of the chapter.C. First.1.§1B1. amendment 440). 1997 (see Appendix C. November 1. 80. the commentary may suggest circumstances which. Amended effective November 1. November 1.1(c) is applied to the offense resulting in the greatest offense level. subjecting the sentence to possible reversal on appeal. Policy statements are similarly identified. 1989 (see Appendix C. the commentary may provide background – 34 – . §1B1. The first number is the chapter. the second number is the subpart. Finally. See 18 U. The parts are divided into subparts and individual guidelines.

1 (Career Offender). a downward departure from the guidelines is warranted pursuant to a government motion under §5K1.November 1.1 (Substantial Assistance to Authorities).8 information. These are to be construed as commentary and thus have the force of policy statements. 36. "[C]ommentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute. 38 (1993). (b) (2) (3) (4) (5) – 35 – .8. 508 U. As with a policy statement. Use of Certain Information (a) Where a defendant agrees to cooperate with the government by providing information concerning unlawful activities of others.S." Stinson v. 1993 (see Appendix C. in a prosecution for perjury or giving a false statement. except to the extent provided in the agreement. or to what extent. such commentary may provide guidance in assessing the reasonableness of any departure from the guidelines. or in determining whether. amendment 498). or is inconsistent with. Amended effective November 1. United States. including factors considered in promulgating the guideline or reasons underlying promulgation of the guideline. in the event there is a breach of the cooperation agreement by the defendant. 2009 GUIDELINES MANUAL §1B1. 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. concerning the existence of prior convictions and sentences in determining §4A1. §1B1. Historical Note: Effective November 1. then such information shall not be used in determining the applicable guideline range. 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.1 (Criminal History Category) and §4B1. Commentary Portions of this document not labeled as guidelines or commentary also express the policy of the Commission or provide guidance as to the interpretation and application of the guidelines. that guideline. 1987. or a plainly erroneous reading of.

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

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

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

591.—Amendments covered by this policy statement are listed in Appendix C as follows: 126. 484.10 constituted a non-guideline sentence determined pursuant to 18 U. Accordingly. 454.S.C. 506. 702. 176. 379. 2009 GUIDELINES MANUAL §1B1. 433.S. but only within the limits described in subsection (b). 543 U.g. a reduction in the defendant’s term of imprisonment is not authorized under 18 U. a statutory mandatory minimum term of imprisonment).C. Public Safety Consideration. and (II) the extent of such reduction. 516. 380.—Eligibility for consideration under 18 U. 156. § 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. 341. Factors for Consideration.C. 130. 461. 706 as amended by 711.S. (C) Prohibition. 606. a further reduction generally would not be appropriate. and (II) the extent of such reduction.—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 – .. and 715. 599. § 3582(c)(2).C.S. 371. § 3582(c)(2) is triggered only by an amendment listed in subsection (c) that lowers the applicable guideline range. § 3553(a) and United States v. 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. Booker.— (i) In General. 329. 657. the court shall consider the factors set forth in 18 U.—In no event may the reduced term of imprisonment be less than the term of imprisonment the defendant has already served. 220 (2005). 269. 490.S. (c) Covered Amendments. 488. Commentary Application Notes: 1.C. § 3553(a) in determining: (I) whether a reduction in the defendant’s term of imprisonment is warranted.— (A) Eligibility. Application of Subsection (a).—Consistent with 18 U. Post-Sentencing Conduct. 505. 499.—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.S. but only within the limits described in subsection (b).November 1.

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

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

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

the court is to apply the guidelines and policy statements in effect at the time of sentencing. For example. This is true even if the defendant’s conduct relevant to the determination of the guideline range under §1B1.S. 1st Sess. 1991. Although aware of possible ex post facto clause challenges to application of the guidelines in effect at the time of sentencing. 77-78 (1983). 1992). Congress did not believe that the ex post facto clause would apply to amended sentencing guidelines. Under the 1992 edition of the Guidelines Manual (effective November 1. 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. Under the 1989 edition of the Guidelines Manual (effective November 1. While the Commission concurs in the policy expressed by Congress. the defendant has a guideline range of 2-8 months (final offense level of 8. Subsection (b)(3) provides that where the defendant is convicted of two offenses. No. the guideline range applicable in sentencing will encompass any relevant conduct (e. S. and the second after. 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. the offense level of 8 and criminal history category of I from the 1989 edition of the Guidelines Manual in conjunction with the amended guideline range of 0-6 months for this offense level and criminal history category from the 1992 edition of the Guidelines Manual. a revised edition of the Guidelines Manual became effective. criminal history category of I). the ex post facto clause does not prevent determining the sentence for that count based on the amended guidelines. for example. even if the revised edition results in an increased penalty for the first offense.C. criminal history category of I). 1991 and October 28. it shall apply the 1989 edition of the Guidelines Manual in its entirety. § 3553. Rep. It shall not apply. 225. Subsection (b)(2) provides that the Guidelines Manual in effect on a particular date shall be applied in its entirety.e. the defendant has a guideline range of 4-10 months (final offense level of 9.11 base offense level for antitrust offenses. 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.3 (Relevant Conduct) included an act that occurred on November 2.. Under subsection (b)(1).. § 9 of the United States Constitution.g. 98th Cong. 2009 GUIDELINES MANUAL §1B1. 1991 is the controlling date for ex post facto purposes. the date of October 28. Under 18 U. 1992. the revised edition of the Guidelines Manual is to be applied to both offenses. if a defendant pleads guilty to a single count of embezzlement that occurred after the most recent edition of the Guidelines Manual became effective. For example. 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. related embezzlement offenses that may have occurred prior to the effective date of the guideline amendments) for the offense of conviction. Effective November 1. 1991 (after a revised Guideline Manual took effect).. the first committed before.November 1. 1989). 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. one committed before the amendments – 43 – . 2. the last date of the offense of conviction is the controlling date for ex post facto purposes. Because the defendant completed the second offense after the amendment to the guidelines took effect. The same would be true for a defendant convicted of two counts of embezzlement. if the offense of conviction (i.

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

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.C. (iii) (iv) – 45 – . or in combination with. or is experiencing deteriorating physical or mental health because of the aging process. after considering the factors set forth in 18 U.—Provided the defendant meets the requirements of subdivision (2). Application of Subsection (1)(A).13 §1B1. (3) Commentary Application Notes: 1. As determined by the Director of the Bureau of Prisons.— (A) Extraordinary and Compelling Reasons.S. The defendant is suffering from a permanent physical or medical condition. as provided in 18 U.C.13.S.C. there exists in the defendant’s case an extraordinary and compelling reason other than. and (ii) has served at least 30 years in prison pursuant to a sentence imposed under 18 U.S. the court may reduce a term of imprisonment (and may impose a term of supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment) if. to the extent that they are applicable. § 3582(c)(1)(A). § 3559(c) for the offense or offenses for which the defendant is imprisoned. 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. (ii). 2009 GUIDELINES MANUAL §1B1. and (iii). and the reduction is consistent with this policy statement. § 3553(a). extraordinary and compelling reasons exist under any of the following circumstances: (i) (ii) The defendant is suffering from a terminal illness. or the defendant (i) is at least 70 years old. the reasons described in subdivisions (i). The death or incapacitation of the defendant’s only family member capable of caring for the defendant’s minor child or minor children.S.November 1. the court determines that— (1) (A) (B) extraordinary and compelling reasons warrant the reduction. § 3142(g).C. (2) the defendant is not a danger to the safety of any other person or to the community.

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

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

2009 PART A . because death obviously is an aggravating factor. the defendant merely passed a note to the teller. § 848(e).S.2 (Second Degree Murder) is not likely to be appropriate. 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. 2340A. (B) 3. § 848(e).S.C.S. 1841(a)(2)(C).C.§2A1. For additional statutory provision(s). recklessness or negligence). 2199. This guideline also applies when death results from the commission of certain felonies.C. The extent of the departure should be based upon the defendant’s state of mind (e.S. For example. life imprisonment is the appropriate sentence if a sentence of death is not imposed. departure below the minimum guideline sentence provided for second degree murder in §2A1. this guideline may be applied as a result of a cross reference (e. as provided in 18 U.—If the defendant did not cause the death intentionally or knowingly. 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. Application Notes: 1.g.C. Felony Murder. 2113(e). as a result of which the teller had a heart attack and died. § 3553(e). a kidnapping in which death occurs).g. 2332b(a)(1).. and the nature of the underlying offense conduct. Applicability of Guideline When Death Sentence Not Imposed. a downward departure may be warranted. HOMICIDE §2A1.. 1992(a)(7). A downward departure would not be appropriate in such a case. 2118(c)(2). or 21 U..g. §§ 1111.1 GUIDELINES M ANUAL November 1. murder in aid of racketeering).OFFENSES AGAINST THE PERSON 1. 2291.—In the case of premeditated killing. or in cases in which the offense level of a guideline is calculated using the underlying crime (e. § 3591 et seq. For example. the degree of risk inherent in the conduct. First Degree Murder (a) Base Offense Level: 43 Commentary Statutory Provisions: 18 U. 21 U. Also. However. see Appendix A (Statutory Index).S. a downward departure may be warranted if in robbing a bank. 2282A.— (A) Offenses Involving Premeditated Killing. a sentence of death may be – 48 – . Imposition of Life Sentence.—This guideline applies in cases of premeditated killing. 2.1.—If the defendant is sentenced pursuant to 18 U.C. Applicability of Guideline.

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

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

increase by 4 levels. increase by 2 levels. Attempted Murder (a) Base Offense Level: (1) 33. If the offense involved the offer or the receipt of anything of pecuniary value for undertaking the murder. otherwise. 1117. or (C) the degree of injury is between that specified in subdivisions (A) and (B). 1990 (see Appendix C. If the offense resulted in an attempted murder or assault with intent to commit murder. (2) Commentary Statutory Provisions: 18 U. Historical Note: Effective November 1. Amended effective November 1. amendment 311). increase by 4 levels. 2009 GUIDELINES MANUAL §2A2. Attempted Murder). if the object of the offense would have constituted first degree murder. 373. or 27. 1751(d). amendment 663). 2004 (see Appendix C. 371.1. (2) (b) Specific Offense Characteristics (1) If (A) the victim sustained permanent or life-threatening bodily injury. apply §2A2. increase by 3 levels. increase by 4 levels. * * * * * 2. ASSAULT §2A2.1 (First Degree Murder). (2) – 51 – . apply §2A1. (c) Cross References (1) If the offense resulted in the death of a victim.S. (B) the victim sustained serious bodily injury.1 (b) Specific Offense Characteristic (1) If the offense involved the offer or the receipt of anything of pecuniary value for undertaking the murder. Assault with Intent to Commit Murder.November 1.C. §§ 351(d).1 (Assault with Intent to Commit Murder.

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

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

4. The enhancement in subsection (b)(6) is cumulative to the adjustment in §3A1. §2A2. Background: This guideline covers felonious assaults that are more serious than minor assaults because of the presence of an aggravating factor. November 1. amendment 614). amendment 549). 2006 (see Appendix C. if the offense involved physical contact. amendment 699). serious bodily injury. 2007 (see Appendix C. 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. 2002 (see Appendix C. amendments 85 and 86). or the intent to commit another felony. §§ 111 and 115. November 1. amendment 534). otherwise. the involvement of a dangerous weapon with intent to cause bodily injury.1 (Assault with Intent to Commit Murder. Attempt to Commit Criminal Sexual Abuse). November 1. 1987. the base offense level and the weapon enhancement in subsection (b)(2) take into account different aspects of the offense. the structure follows §2A2. Historical Note: Effective November 1. 3.—If subsection (b)(6) applies. 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.2 GUIDELINES M ANUAL November 1. November 1. 2009 present would not alone constitute more than minimal planning.2 (Official Victim) in order to address adequately the directive in section 11008(e)(2)(D) of the Act. Application of Official Victim Adjustment. amendment 637). i.—In a case involving a dangerous weapon with intent to cause bodily injury. November 1.3. This guideline also covers attempted manslaughter and assault with intent to commit manslaughter. 1989 (see Appendix C.. amendment 663). November 1. 1997 (see Appendix C. Attempted Murder). Public Law 107–273. the court shall apply both the base offense level and subsection (b)(2).§2A2. 2001 (see Appendix C. Subsection (b)(6) implements the directive to the Commission in subsection 11008(e) of the 21st Century Department of Justice Appropriations Act (the "Act").e. §3A1.1. November 1. Amended effective November 1.2 (Official Victim) also shall apply. or 4. November 1. By contrast. Assault with intent to commit murder is covered by §2A2. Consequently. Assault with intent to commit rape is covered by §2A3.S. or if a dangerous weapon (including a firearm) was possessed and its use was threatened.1 (Criminal Sexual Abuse. (2) – 54 – . 2004 (see Appendix C. Minor Assault (a) Base Offense Level: (1) 7. even if application of the base offense level and the weapon enhancement is based on the same conduct. 1990 (see Appendix C. Such offenses occasionally may involve planning or be committed for hire.C. Application of Subsection (b)(2). In such a case. amendment 685). luring the victim to a specific location or wearing a ski mask to prevent identification would constitute more than minimal planning. amendment 311). 1995 (see Appendix C.

"dangerous weapon". §§ 112.November 1. November 1. 2291. Amended effective October 15.2 (Aggravated Assault). see Appendix A (Statutory Index). or (B) a dangerous weapon – 55 – . 115(a). § 113(b)(1). Obstructing or Impeding Officers (a) (b) Base Offense Level: 10 Specific Offense Characteristics (1) If (A) the offense involved physical contact. 1988 (see Appendix C. Application of Subsection (b)(1).2 (Aggravated Assault). 115(b)(1).4 (b) Specific Offense Characteristic (1) If (A) the victim sustained bodily injury. and "firearm" have the meaning given those terms in Application Note 1 of the Commentary to §1B1.S.1 (Application Instructions). amendment 699). 2. (c) Cross Reference (1) If the conduct constituted aggravated assault. Commentary Statutory Provisions: 18 U.C.—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)." See 18 U.4. organ. increase by 4 levels. amendment 510).—For purposes of this guideline: "Bodily injury". or a felonious assault not covered by §2A2. apply §2A2. For additional statutory provision(s). "Substantial bodily injury" means "bodily injury which involves (A) a temporary but substantial disfigurement. 1987. amendment 663). 2004 (see Appendix C. Application Notes: 1. or (B) a temporary but substantial loss or impairment of the function of any bodily member. 2009 GUIDELINES MANUAL §2A2.C. 1751(e). 1995 (see Appendix C. November 1. November 1. 351(e). Historical Note: Effective November 1. 2007 (see Appendix C. Definitions.S. increase by 2 levels. amendments 87 and 88). November 1. or (B) the offense resulted in substantial bodily injury to an individual under the age of sixteen years. §2A2. 1989 (see Appendix C. or mental faculty. "Minor assault" means a misdemeanor assault. Background: Minor assault and battery are covered in this section. 2199. amendment 64).

1997 (see Appendix C. and "firearm" have the meaning given those terms in Application Note 1 of the Commentary to §1B1.—The base offense level incorporates the fact that the victim was a governmental officer performing official duties. § 758 for fleeing or evading a law enforcement checkpoint at high speed will often. see Appendix A (Statutory Index). November 1. 2007 (see Appendix C. 1502. amendment 550). amendment 663). amendment 679). Upward Departure Provision. * * * * * – 56 – . Therefore. 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. Application of Certain Chapter Three Adjustments. November 1. involve the creation of that risk).—For purposes of this guideline. (2) (c) If the victim sustained bodily injury. November 1. "dangerous weapon". Commentary Statutory Provisions: 18 U.C.S. the offense level is determined under §2A2.1 (Application Instructions). 2005 (see Appendix C.2 (Reckless Endangerment During Flight). amendment 443). 2. increase by 2 levels.2 (Aggravated Assault). 2009 (including a firearm) was possessed and its use was threatened. Definitions.§2A2. In situations involving such disruption. Conversely. Application Notes: 1. 1988 (see Appendix C. 3. but not always. an upward departure may be warranted. 1989 (see Appendix C. Historical Note: Effective October 15. November 1.2 (Official Victim) unless. (a)(2)(A).4 GUIDELINES M ANUAL November 1.C.S. pursuant to subsection (c). "bodily injury". For additional statutory provision(s). §§ 111. 2004 (see Appendix C. increase by 3 levels. See §5K2.2 (Aggravated Assault). do not apply §3A1.—The base offense level does not assume any significant disruption of governmental functions. apply §3C1. 2237(a)(1). apply §2A2. amendment 699). amendments 89 and 90).7 (Disruption of Governmental Function). 1992 (see Appendix C. Amended effective November 1. 3056(d). Cross Reference (1) If the conduct constituted aggravated assault. If the defendant creates that risk and no higher guideline adjustment is applicable for the conduct creating the risk. November 1. amendment 64). 1501.

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

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

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

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

or (ii) a participant otherwise unduly influenced the minor to engage in prohibited sexual conduct. regardless of the "consent" of the victim. Definitions.S.S.—For purposes of this guideline: "Computer" has the meaning given that term in 18 U. induce.November 1.2 §2A3. (B) an individual. increase by 4 levels. If a computer or an interactive computer service was used to persuade. see Appendix A (Statutory Index).1 shall apply. – 61 – .S. and (ii) could be provided for the purposes of engaging in sexually explicit conduct. apply §2A3. § 2241 or § 2242). entice. or supervisory control of the defendant. entice. (2) (3) (c) Cross Reference (1) If the offense involved criminal sexual abuse or attempt to commit criminal sexual abuse (as defined in 18 U. "Minor" means (A) an individual who had not attained the age of 16 years. care. increase by 4 levels.C. and (B)(i) the offense involved the knowing misrepresentation of a participant’s identity to persuade. 2009 GUIDELINES MANUAL §2A3. who a law enforcement officer represented to a participant (i) had not attained the age of 16 years. §2A3. or coerce the minor to engage in prohibited sexual conduct. § 230(f)(2)).S.1 (Criminal Sexual Abuse. 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. increase by 2 levels.C. § 2243(a). § 1030(e)(1). For additional statutory provision(s). or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 16 years. Application Notes: 1. Commentary Statutory Provision: 18 U.C. If (A) subsection (b)(1) does not apply. whether fictitious or not. Attempt to Commit Criminal Sexual Abuse). induce. or coerce the minor to engage in prohibited sexual conduct.C. "Interactive computer service" has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U.2. If the victim had not attained the age of 12 years.

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

§ 2243(a). regardless of the "consent" of the minor. §2A3. or kidnaping (see 18 U. Attempt to Commit Criminal Sexual Abuse) will apply.— Subsection (c)(1) provides a cross reference to §2A3. November 1.C. Cross Reference. In such cases. amendment 664). Background: This section applies to offenses involving the criminal sexual abuse of an individual who had not attained the age of 16 years. 2000 (see Appendix C.3 a rebuttable presumption that subsection (b)(2)(B)(ii) applies. 1995 (see Appendix C. 2009 GUIDELINES MANUAL §2A3. an upward departure may be warranted. amendment 93). §2A3. § 2241 or § 2242.(c)). § 2241(a).—Subsection (b)(3) provides an enhancement if a computer or an interactive computer service was used to persuade. In such a case. November 1. the cross reference to §2A3. amendment 732). (B) the victim had attained the age of 12 years but not attained the age of 16 years.S. amendment 511). as defined in 18 U.S. as specified in 18 U. an upward departure may be warranted if the defendant committed the criminal sexual act in furtherance of a commercial scheme such as pandering.S. However. amendment 592).C. § 2242(1)). November 1. 1992 (see Appendix C.3. Amended effective November 1. A four-level enhancement is provided in subsection (b)(2) for such cases. 2009 (see Appendix C. 2001 (see Appendix C. amendment 444). 1989 (see Appendix C. or coerce the minor to engage in prohibited sexual conduct. some degree of undue influence can be presumed because of the substantial difference in age between the participant and the minor. § 2241(c)). 5. § 2243(a) that would be lawful but for the age of the minor. serious bodily injury. in which a participant took active measure(s) to unduly influence the minor to engage in prohibited sexual conduct and. Criminal Sexual Abuse of a Ward or Attempt to Commit Such Acts (a) (b) Base Offense Level: 14 Specific Offense Characteristics – 63 – . 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. November 1. A four-level enhancement is provided in subsection (b)(1) for a defendant who victimizes a minor under his supervision or care. Attempt to Commit Criminal Sexual Abuse) if the offense involved criminal sexual abuse or attempt to commit criminal sexual abuse. For example. or supervisory control of the minor.S. if the minor had not attained the age of 12 years. or (C) the victim was threatened or placed in fear other than fear of death. or the production of pornography.C. care.1 shall apply if (A) the victim had not attained the age of 12 years (see 18 U. November 1. For example.November 1.C.C. entice. Upward Departure Consideration. amendment 392). or kidnaping (see 18 U. the voluntariness of the minor’s behavior was compromised. Application of Subsection (b)(3). 4. thus. November 1.—There may be cases in which the offense level determined under this guideline substantially understates the seriousness of the offense.1 (Criminal Sexual Abuse. § 2243(a). November 1. it also applies to cases. amendment 615).S. 1987. induce.C. serious bodily injury. 1991 (see Appendix C. Historical Note: Effective November 1. While this section applies to consensual sexual acts prosecuted under 18 U. transporting persons for the purpose of prostitution.S. and was placed in fear of death.C.S. 2004 (see Appendix C. prosecuted under 18 U. 6.1 (Criminal Sexual Abuse. It is assumed that at least a four-year age difference exists between the minor and the defendant.

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

Abusive Sexual Contact or Attempt to Commit Abusive Sexual Contact (a) Base Offense Level: (1) 20. amendment 701). November 1.—Subsection (b)(2) provides an enhancement 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. and the victim had attained the age of twelve years but had not attained the age of sixteen years. increase by 4 levels. 2009 GUIDELINES MANUAL §2A3. (2) (3) (b) Specific Offense Characteristics (1) If the victim had not attained the age of twelve years. 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. 1995 (see Appendix C. amendment 592).4 3. 4. November 1. but if the resulting offense level is less than 22. or supervisory control of the defendant. amendment 615). amendment 511).3 (Abuse of Position of Trust or Use of Special Skill).S. November 1. 2004 (see Appendix C. November 1. or 12. 2001 (see Appendix C.S.C. Inapplicability of §3B1. amendment 94). Historical Note: Effective November 1. § 2242. care. §2A3. otherwise.November 1. entice.C. Application of Subsection (b)(2). If a computer or an interactive computer service was used to persuade. if the offense involved conduct described in 18 U. increase by 2 levels. 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 – . If the victim was in the custody. induce. increase to level 22. increase by 2 levels. 16. amendment 664). Amended effective November 1. If the base offense level is determined under subsection (a)(1) or (2). induce. or coerce a minor to engage in prohibited sexual conduct. entice. 1989 (see Appendix C. 2007 (see Appendix C. 2000 (see Appendix C.3. entice. induce. or coerce a minor to engage in prohibited sexual conduct. November 1. § 2241(a) or (b).4.—Do not apply §3B1. care. 1987. increase by 2 levels. 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.C. "conduct described in 18 U.S. a drug. "Participant" has the meaning given that term in Application Note 1 of the Commentary to §3B1. or (B) – 66 – 3.2 (Criminal Sexual Abuse of a Minor Under the Age of Sixteen Years (Statutory Rape) or Attempt to Commit Such Acts). 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. if the resulting offense level is greater than that determined above. Application Notes: 1.C.1 (Aggravating Role). serious bodily injury. § 2241 or § 2242). or (D) administering by force or threat of force. apply §2A3. apply §2A3. § 2241(a) or (b)" is engaging in. or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years. § 2243(a)). Attempt to Commit Criminal Sexual Abuse).S.S.S. or kidnapping. "Minor" means (A) an individual who had not attained the age of 18 years. or causing sexual contact with.S. who a law enforcement officer represented to a participant (i) had not attained the age of 18 years. (C) rendering the victim unconscious. (B) an individual.C. Application of Subsection (a)(2). . For additional statutory provision(s).4 GUIDELINES M ANUAL November 1. "conduct described in 18 U. "Interactive computer service" has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U. Attempt to Commit Criminal Sexual Abuse). 2009 criminal sexual abuse (as defined in 18 U. or by another person by: (A) using force against the victim. § 230(f)(2)). (B) threatening or placing the victim in fear that any person will be subjected to death. § 1030(e)(1).—For purposes of this guideline: "Computer" has the meaning given that term in 18 U. or without the knowledge or permission of the victim.S.§2A3. (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. serious bodily injury.C. or kidnapping). or causing sexual contact with. intoxicant.S. § 2244. "Prohibited sexual conduct" has the meaning given that term in Application Note 1 of the Commentary to §2A3. see Appendix A (Statutory Index).—For purposes of subsection (a)(1). Commentary Statutory Provision: 18 U. Definitions.—For purposes of subsection (a)(2). 2. Application of Subsection (a)(1).1 (Criminal Sexual Abuse. or other similar substance and thereby substantially impairing the ability of the victim to appraise or control conduct.1 (Criminal Sexual Abuse.C.C. § 2242" is: (A) engaging in.C. whether fictitious or not.

3 (Abuse of Position of Trust or Use of Special Skill).—If the enhancement in subsection (b)(3) applies. amendment 592). entice. day care providers. entice. 4. babysitters. November 1. 1991 (see Appendix C. Care. The misrepresentation to which the enhancement in subsection (b)(4) may apply includes misrepresentation of a participant’s name. November 1. amendment 615). Misrepresentation of a Participant’s Identity. November 1. or supervisory control of the minor. Inapplicability of Chapter Three Adjustment. 2001 (see Appendix C. In determining whether to apply 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.November 1. Application of Subsection (b)(3). Background: This section covers abusive sexual contact not amounting to criminal sexual abuse (criminal sexual abuse is covered under §§2A3. occupation.5 engaging in. amendments 701 and 711). Subsection (b)(4) is intended to apply only to misrepresentations made directly to a minor or to a person who exercises custody. Accordingly. amendment 664). or other temporary caretakers are among those who would be subject to this enhancement. Historical Note: Effective November 1. Application of Subsection (b)(5). as long as the misrepresentation was made with the intent to persuade. 2007 (see Appendix C. 2000 (see Appendix C. teachers.3). or coerce a minor to engage in prohibited sexual conduct.—Subsection (b)(3) is intended to have broad application and is to be applied whenever the victim is entrusted to the defendant. 6. 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. age. or coerce a minor to engage in prohibited sexual conduct. or coerce a minor to engage in prohibited sexual conduct. or supervisory control of the minor. or Supervisory Control. November 1. induce. induce. or status. 1987. induce. amendment 444). Alternative base offense levels are provided to take account of the different means used to commit the offense. care. 1992 (see Appendix C. use of a computer screen name. 2004 (see Appendix C. gender. or by another person who is incapable of appraising the nature of the conduct or physically incapable of declining participation in. November 1.1-3. Failure to Register as a Sex Offender (a) Base Offense Level (Apply the greatest): – 67 – . do not apply §3B1. 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. would not be a sufficient basis for application of the enhancement. 1995 (see Appendix C. amendment 392). 2009 GUIDELINES MANUAL §2A3.— (A) Custody. For example. November 1.—Subsection (b)(5) provides an enhancement if a computer or an interactive computer service was used to persuade.—The enhancement in subsection (b)(4) applies in cases involving the misrepresentation of a participant’s identity to persuade. whether temporarily or permanently. (B) 5. without such intent. the sexual act. Accordingly. amendment 511). or causing sexual contact with. entice. amendment 95). November 1. §2A3. or communicating unwillingness to engage in. 1989 (see Appendix C. care.5. Amended effective November 1.

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

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

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

Solicitation. if an offense involved conspiracy to kidnap for the purpose of committing murder.C. abduction. for example.C. and 24212423.November 1.S. for purposes of this guideline. For additional statutory provision(s). if the resulting offense level is greater than that determined above. 2340A. "A dangerous weapon was used" means that a firearm was discharged. which is taken into account in the specific offense characteristic under subsection (b)(5).1 (First Degree Murder). 351(b). see Appendix A (Statutory Index). if an offense involved a kidnapping during which a participant attempted to murder the victim under circumstances that would have constituted first degree murder had death occurred. In the case of a conspiracy. or (B) 4 plus the offense level from the offense guideline applicable to that other offense. "Sexually exploited" includes offenses set forth in 18 U. – 71 – . §§ 2241-2244.S. in any other case.1 (Application Instructions)).S. However. attempt. or solicitation to kidnap. or unlawful restraint. 1751(b).1(b)). 4. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States. but in no event greater than level 43.1 (Attempt. subject to a possible 3-level reduction under §2X1.1 applicable to that other offense if such offense guideline includes an adjustment for kidnapping. Commentary Statutory Provisions: 18 U. 3. subsection (b)(7) would reference first degree murder (resulting in an offense level of 43. (c) Cross Reference (1) If the victim was killed under circumstances that would constitute murder under 18 U. Similarly. 2009 GUIDELINES MANUAL §2A4. Therefore. or a "firearm" or "dangerous weapon" was "otherwise used" (as defined in the Commentary to §1B1. 2. for example. 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 otherwise takes such conduct into account. apply §2A1. 1201. 1203.1 (Application Instructions). or Conspiracy) requires that the court apply any adjustment that can be determined with reasonable certainty. §2X1. (d). "serious bodily injury" means conduct other than criminal sexual abuse.C. §§ 115(b)(2). Application Notes: 1. 2251. the offense referenced under subsection (b)(7) would be the offense of first degree murder.

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

S. Amended effective November 1. 1987. behavior proscribed by 18 U. Commentary Statutory Provisions: 49 U. Operation. AIR PIRACY AND OFFENSES AGAINST MASS TRANSPORTATION SYSTEMS Historical Note: Effective November 1. or by any other form of intimidation. or (B) a mass transportation facility or a mass transportation vehicle. amendment 479). 1995 (see Appendix C. 49 U. 49 U. amendment 534). Historical Note: Effective November 1. Amended effective November 1. Navigation.C. or (B) a mass transportation facility or a mass transportation vehicle. Amended effective November 1. For additional statutory provision(s). see Appendix A (Statutory Index). 2002 (see Appendix C. 1987. – 73 – (2) . amendment 637). § 46502(a).C.November 1. increase by 5 levels.S. Aircraft Piracy or Attempted Aircraft Piracy (a) (b) Base Offense Level: 38 Specific Offense Characteristic (1) If death resulted. 18. §2A5.1. Interference with Dispatch. and aircraft piracy outside that jurisdiction when the defendant is later found in the United States.C. * * * * * 5. Historical Note: Effective November 1. § 1472 (i). 2009 GUIDELINES MANUAL §2A5.S. or threat of force or violence. § 46502(a). (n)). The presence of a weapon is assumed in the base offense level.C. Background: This section covers aircraft piracy both within the special aircraft jurisdiction of the United States. § 46502(b). (b) (formerly 49 U. §§ 876-877. §2A5. Seizure of control of an aircraft may be by force or violence. Interference with Flight Crew Member or Flight Attendant. 1987.1. if the offense involved recklessly endangering the safety of: (A) an airport or an aircraft.2 The actual demand for ransom under these circumstances is reflected in §2A4.C. if the offense involved intentionally endangering the safety of: (A) an airport or an aircraft.S. This section additionally includes extortionate demands through the use of the United States Postal Service. 1993 (see Appendix C. or Maintenance of Mass Transportation Vehicle (a) Base Offense Level (Apply the greatest): (1) 30.2.S.

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

1988 (see Appendix C. 2006 (see Appendix C. § 1521 and the offense involved more than two false liens or encumbrances. AND DOMESTIC VIOLENCE Historical Note: Effective November 1. Amended effective November 1. §2A6. (D). If (A) the offense involved more than two threats. STALKING. amendment 65). amendment 534). amendment 98). or 6. Hoaxes. 2. § 223(a)(1)(C). November 1. (2) – 75 – .C. * * * * * 6. 1995 (see Appendix C. § 1472(k)(1)). Commentary Statutory Provision: 49 U. HOAXES. an upward departure may be warranted. If the conduct intentionally or recklessly endangered the safety of the aircraft or passengers. "Underlying offense" refers to the offense listed in 49 U. or (E) that did not involve a threat to injure a person or property.C.S. Amended effective November 1.3. if the defendant is convicted of an offense under 47 U.S.S.C. 1997 (see Appendix C.S. amendment 549). Historical Note: Effective October 15. 1987. or (B) the defendant is convicted under 18 U.C. increase by 6 levels. § 46506 of which the defendant is convicted.S. (b) Specific Offense Characteristics (1) If the offense involved any conduct evidencing an intent to carry out such threat.1. False Liens (a) Base Offense Level: (1) (2) 12. 1989 (see Appendix C. 2009 GUIDELINES MANUAL §2A6.C. Threatening or Harassing Communications. amendment 686). November 1.November 1.1 §2A5. THREATENING OR HARASSING COMMUNICATIONS. Committing Certain Crimes Aboard Aircraft (a) Base Offense Level: The offense level applicable to the underlying offense. § 46506 (formerly 49 U. Application Notes: 1. increase by 2 levels.

multiple counts involving making a threatening or harassing communication to the same victim are grouped – 76 – 2. the court shall consider only those prior acts of threatening the victim that have a substantial and direct connection to the offense. and (b)(3) apply. 2009 If the offense involved the violation of a court protection order. §§ 32(c). however. 878(a). If the offense resulted in (A) substantial disruption of public. governmental. 1038. increase by 4 levels. Commentary Statutory Provisions: 18 U. § 115.1 (3) GUIDELINES M ANUAL November 1. decrease by 4 levels.C. 877. (4).— In determining whether subsections (b)(1). If the defendant (A) is convicted under 18 U.C. apply §2M6. then for purposes of determining whether subsections (b)(1). 879. 2332b(a)(2). or (B) a substantial expenditure of funds to clean up. (b)(2). 35(b). Applicability of Chapter Three Adjustments. and (D). § 223(a)(1)(C)-(E). Part D (Multiple Counts). see Appendix A (Statutory Index). Scope of Conduct to Be Considered. under the facts of the case taken as a whole. (2). § 115. 2291(a)(8).S. decontaminate. as defined in 18 U. 1521. § 1521. or otherwise respond to the offense. and (C) knew or should have known that the public threatening communication created a substantial risk of inciting others to violate 18 U. the court shall consider both conduct that occurred prior to the offense and conduct that occurred during the offense. If (A) subsection (a)(2) and subdivisions (1). and (B) the offense involved a single instance evidencing little or no deliberation. 2292. § 2332a(c)(2)(B). or business functions or services.C. and (b)(3) apply. 2291(e). conduct that occurred prior to the offense must be substantially and directly connected to the offense.C. increase by 2 levels. For additional statutory provision(s). § 46507.S. 47 U. 49 U. . increase by 2 levels.—If the defendant is convicted under 18 U. (C). (B) made a public threatening communication.S. (b)(2).C. if the resulting offense level is greater than that determined under this guideline.S. (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. For example. Grouping.C. 876.—For purposes of Chapter Three.S. (3). apply §3A1.C. 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). Application Notes: 1. and (5) do not apply.S. 3.2 (Official Victim). 871.S. (a)(10). 1992(a)(9).§2A6.1 (Weapons of Mass Destruction).

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

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

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

§2B1.1. amendment 303). Larceny.000 More than $400. 2001 (see Appendix C. Fraud and Deceit. and simple property damage or destruction. PROPERTY DESTRUCTION. fraud. increase the offense level as follows: Loss (Apply the Greatest) (A) (B) (C) (D) (E) (F) (G) (H) (I) (J) $5.000 More than $30.000.500. Forgery. Part K (Offenses Involving Public Safety)).000. otherwise. Historical Note: Effective November 1.000 – 80 – Increase in Level no increase add 2 add 4 add 6 add 8 add 10 add 12 add 14 add 16 add 18 . November 1. 1987.1 GUIDELINES M ANUAL November 1. 2009 PART B . Property Damage or Destruction. if (A) the defendant was convicted of an offense referenced to this guideline. or 6. forgery. EMBEZZLEMENT.000 More than $70. as well as offenses that arise under the Assimilative Crimes Act. insider trading. Embezzlement. These guidelines apply to offenses prosecuted under a wide variety of federal statutes.000 More than $10. counterfeiting (other than offenses involving altered or counterfeit bearer obligations of the United States).000 More than $1. AND OFFENSES INVOLVING FRAUD OR DECEIT Introductory Commentary These sections address basic forms of property offenses: theft. amendment 617). THEFT.000 More than $2. 1989 (see Appendix C. and (B) that offense of conviction has a statutory maximum term of imprisonment of 20 years or more. Amended effective November 1.§2B1. Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States (a) Base Offense Level: (1) 7.000 More than $120. (Arson is dealt with separately in Chapter Two. transactions in stolen goods. embezzlement. and Other Forms of Theft. RECEIPT OF STOLEN PROPERTY.000 More than $200. (2) (b) Specific Offense Characteristics (1) If the loss exceeded $5. Offenses Involving Stolen Property.BASIC ECONOMIC OFFENSES 1.000 or less More than $5.

increase by 6 levels. and the defendant was a person in the business of receiving and selling stolen property.000. If the offense involved misappropriation of a trade secret and the defendant knew or intended that the offense would benefit a foreign government. religious. or political organization.1 add 20 add 22 add 24 add 26 add 28 add 30.000 More than $20.000 More than $100.000. increase by 4 levels. providing. or furnishing financial assistance for an institution of higher education. If the offense involved receiving stolen property. a fraudulent scheme to another jurisdiction to evade law enforcement or regulatory – 81 – (4) (5) (6) (7) (8) (9) .S. increase by 2 levels. increase by 2 levels. increase by 2 levels. or trafficking in. § 1037. or a government agency.000. If the offense involved (A) a misrepresentation that the defendant was acting on behalf of a charitable. (C) a violation of any prior. property from a national cemetery or veterans’ memorial. (B) a misrepresentation or other fraudulent action during the course of a bankruptcy proceeding.000 (Apply the greatest) If the offense— (A) (i) involved 10 or more victims. If the resulting offense level is less than level 10. increase by 2 levels. increase to level 10. If (A) the defendant relocated. specific judicial or administrative order.000. increase by 2 levels.C. If the offense involved theft of. educational. 2009 GUIDELINES MANUAL §2B1. increase by 2 levels. or process not addressed elsewhere in the guidelines.000 More than $200.000 More than $400. (B) (C) (3) If the offense involved a theft from the person of another. If (A) the defendant was convicted of an offense under 18 U. damage to. or participated in relocating. foreign instrumentality. or (D) a misrepresentation to a consumer in connection with obtaining.000.000 More than $50. or foreign agent.000. and (B) the offense involved obtaining electronic mail addresses through improper means. or (ii) was committed through mass-marketing. or involved 250 or more victims. injunction. decree. destruction of.November 1. involved 50 or more victims. (K) (L) (M) (N) (O) (P) (2) More than $7. increase by 2 levels.

2009 officials. increase by 2 levels. or (C)(i) the unauthorized transfer or use of any means of identification unlawfully to produce or obtain any other means of identification. If the offense involved (A) the conscious or reckless risk of death or serious bodily injury. (ii) substantially endangered the solvency or financial security of an organization that.§2B1.C. increase by 2 levels. increase by 2 levels. If the offense involved conduct described in 18 U. If the offense involved an organized scheme to steal or to receive stolen (A) vehicles or vehicle parts. 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. or (ii) the possession of 5 or more means of identification that unlawfully were produced from. increase to level 24. increase by 4 levels. If the resulting offense level is less than level 12. (B) the production or trafficking of any (i) unauthorized access device or counterfeit access device. or (B) possession of a dangerous weapon (including a firearm) in connection with the offense.1 GUIDELINES M ANUAL November 1. or (C) the offense otherwise involved sophisticated means. or (II) had 1. If the resulting offense level is less than level 12. (I) was a publicly traded company. increase by 2 levels. increase by 2 levels. The cumulative adjustments from application of both subsections (b)(2) and (b)(14)(B) shall not exceed 8 levels. except as provided in subdivision (D). § 1040. increase by 2 levels. or (B) goods or chattels that are part of a cargo shipment. If the resulting offense level is less than level 14.000 in gross receipts from one or more financial institutions as a result of the offense. at any time during the offense.000. or (iii) substantially endangered the solvency or financial security of 100 or more victims. or the offense (i) substantially jeopardized the safety and soundness of a financial institution.S. increase to level 14. If the resulting offense level is less than level 12. (B) a substantial part of a fraudulent scheme was committed from outside the United States. increase to level 12. increase to level 12. (Apply the greater) If— (A) the defendant derived more than $1. or (ii) authentication feature. – 82 – (11) (12) (13) (14) (B) (C) (D) .000 or more employees. increase to level 12. another means of identification. If the resulting offense level is less than level 14. If the resulting offense level determined under subdivision (A) or (B) is less than level 24. or (ii) authentication feature.

(ii) a commodities trading advisor. transmitted. increase by 2 levels. destructive device.S. or a person associated with an investment adviser. increase by 6 levels. increase to level 24. at the time of the offense.1 (Unlawful Possession. 18 U.S. (B) increase by 4 levels. explosive material.C. and the offense involved an intent to obtain personal information. Exporting. or possessed was a firearm. 18 U. § 1030(a)(5)(A).1 (15) If (A) the defendant was convicted of an offense under 18 U. increase by 2 levels. Possession. § 1030. and the offense involved a computer system used to maintain or operate a critical infrastructure. or national security. or used by or for a government entity in furtherance of the administration of justice. destructive device.S. (17) If the offense involved— (A) a violation of securities law and. or the taking of any such item was an object of the offense.C. or a person associated with a broker or dealer. (c) Cross References (1) If (A) a firearm.C. or Transportation of Explosive – 83 – . the defendant was (i) an officer or a director of a publicly traded company. § 1030. explosive material. or (iii) a commodity pool operator. Attempt or Conspiracy). (ii) a registered broker or dealer. or controlled substance was taken. 2009 GUIDELINES MANUAL §2B1. the defendant was (i) an officer or a director of a futures commission merchant or an introducing broker. §2K1. transferred.3 (Unlawful Receipt. or controlled substance. or Trafficking (Including Possession with Intent to Commit These Offenses).S. § 1030.November 1. and the offense level is less than level 24.1 (Unlawful Manufacturing. or a violation of commodities law and. Importing. or (iii) an investment adviser. Attempt or Conspiracy). and the offense caused a substantial disruption of a critical infrastructure. national defense. or (B) the offense involved the unauthorized public dissemination of personal information. (A) (Apply the greatest) If the defendant was convicted of an offense under: (i) 18 U. or (B) the stolen property received.C. transported. at the time of the offense. increase by 4 levels. §2D2. apply §2D1. (16) (ii) (iii) (B) If subdivision (A)(iii) applies.

Cultural Heritage Resources. 1341-1344. or Transportation of Firearms or Ammunition. Purchase. – 84 – .S. § 1001.S. 6821. 30170. 49 U. §§ 38. or Receipt of Cultural Heritage Resources).S.C. (a)(5). 285-289. 19 U. as appropriate. and (C) the conduct set forth in the count of conviction establishes an offense specifically covered by another guideline in Chapter Two (Offense Conduct). apply §2B1. 6b. § 2401f. any state or foreign bank. 657.C. 1016-1022. § 657. Prohibited Transactions Involving Firearms or Ammunition). Transportation. §§ 6. "Financial institution" includes any institution described in 18 U. "Equity securities" has the meaning given that term in section 3(a)(11) of the Securities Exchange Act of 1934 (15 U. (B) the defendant was convicted under a statute proscribing false.S. 1708. Exchange. 23.S. 6o. § 1341. 500. 2113(b). 662. Exchange. 1831. 2312-2317. 1040. If the offense involved a cultural heritage resource. § 1342. 1992(a)(1). (2) If the offense involved arson. § 1006. 13. Property Damage by Use of Explosives). 1702. 656. 471-473. is involved). 6h. trust company. fictitious. § 78c(a)(11)). 1029. 60123(b).S. Purchase.4 (Arson.C. 664. 1026. 510. 1037. 2291.1 GUIDELINES M ANUAL November 1. § 501(c). 77e. or fraudulent statements or representations generally (e. 29 U. 2282A.S. apply that other guideline. 1028. 225. 2332b(a)(1). 18 U.C. 553(a)(1).S. Possession. 1363. 78j. Damage to. see Appendix A (Statutory Index).C. 1832.S. 2009 Materials. 78ff. Unlawful Sale. § 1005.§2B1. § 656. if the resulting offense level is greater than that determined above. apply §2K1. 1030(a)(4)-(5).C.5 (Theft of. including destruction of mail. § 1007. 1025. Definitions.C. 1361. 46317(a). 641. or property damage by use of explosives. Unlawful Sale.S. or Destruction of. or §2K2. §§ 50. or Destruction of. § 1011.C. Prohibited Transactions Involving Explosive Materials). or § 1014. 659. 15 U. Transportation. 18 U. credit union. 77x. Application Notes: 1.g.1 (Unlawful Receipt.. 1369.C. 2701. 42 U. (3) (4) Commentary Statutory Provisions: 7 U. 6c. Damage to. 1031. 2282B. or § 1343). if the resulting offense level is greater than that determined above. Cultural Heritage Resources. 80b-6. 77q. §§ 14915. § 20. 1350.—For purposes of this guideline: "Cultural heritage resource" has the meaning given that term in Application Note 1 of the Commentary to §2B1. 1001-1008. For additional statutory provision(s). 1010-1014. 1703 (if vandalism or malicious mischief. If (A) neither subdivision (1) nor (2) of this subsection applies. 1644. or Receipt of Cultural Heritage Resources).C.5 (Theft of. 1348.

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

§2B1. Definition of "Statutory Maximum Term of Imprisonment".—"Pecuniary harm" means harm that is monetary or that otherwise is readily measurable in money. corporations. 2009 "Person" includes individuals. Intended Loss. this guideline is the appropriate guideline for the offense the defendant was convicted of conspiring. and (II) includes intended pecuniary harm that would have been impossible or unlikely to occur (e.—In a case involving multiple counts sentenced under this guideline. or Conspiracy) applies. Pecuniary Harm. or other non-economic harm. as in a government sting operation.—For purposes of subsection (a)(1). harm to reputation. companies. "reasonably foreseeable pecuniary harm" means pecuniary harm that the defendant knew or. soliciting.—This application note applies to the determination of loss under subsection (b)(1). and joint stock companies. 2. Reasonably Foreseeable Pecuniary Harm. or attempt to which §2X1. was a potential result of the offense. (A) General Rule. (i) Actual Loss. "statutory maximum term of imprisonment" means the maximum term of imprisonment authorized for the offense of conviction.—"Intended loss" (I) means the pecuniary harm that was intended to result from the offense.g. reasonably should have known. the applicable base offense level is determined by the count of conviction that provides the highest statutory maximum term of imprisonment. (B) (C) 3.1 (Attempt.—For purposes of this guideline. pecuniary harm does not include emotional distress.1 GUIDELINES M ANUAL November 1.—Subject to the exclusions in subdivision (D). Application of Subsection (a)(1). societies.—In the cases described in subdivisions (I) through (III). solicitation. partnerships.—"Actual loss" means the reasonably foreseeable pecuniary harm that resulted from the offense. or attempting to commit. under the circumstances. reasonably foreseeable pecuniary harm shall be considered to include the pecuniary harm specified for those cases as follows: – 86 – (ii) (iii) (iv) (v) . or (ii) in the case of a conviction for conspiracy. firms. Loss Under Subsection (b)(1).2 (Applicable Guidelines) for the offense of conviction. Base Offense Level Determination for Cases Involving Multiple Counts. Rules of Construction in Certain Cases. including any increase in that maximum term under a statutory enhancement provision.— (A) "Referenced to this Guideline".. Accordingly. loss is the greater of actual loss or intended loss. or an insurance fraud in which the claim exceeded the insured value).—For purposes of this guideline. associations. Solicitation. an offense is "referenced to this guideline" if (i) this guideline is the applicable Chapter Two guideline determined under the provisions of §1B1.

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

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

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

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

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

and (ii) includes (I) any hardware or software that has been configured as described in 18 U. Sophisticated Means Enhancement. Sophisticated Means Enhancement under Subsection (b)(9). or offshore financial accounts also ordinarily indicates sophisticated means.C. Guam. "Device-making equipment" (i) has the meaning given that term in 18 U. the District of Columbia. do not apply that adjustment under §3B1. Non-Applicability of Chapter Three Adjustment.S. do not apply that adjustment under §3C1. and American Samoa.C. § 1028(d)(1). in a telemarketing scheme.—For purposes of subsection (b)(9)(B). locating the main office of the scheme in one jurisdiction but locating soliciting operations in another jurisdiction ordinarily indicates sophisticated means. the United States Virgin Islands.C.S. the Northern Mariana Islands. corporate shells. § 1029(e)(6).1.—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. through the use of fictitious entities.3 (Abuse of Position of Trust or Use of Special Skill). § 1029(e)(2).1. § 1029(a)(9). "Counterfeit access device" (i) has the meaning given that term in 18 U. For example.—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 §3C1.1 (Obstructing or Impeding the Administration of Justice). "Scanning receiver" has the meaning given that term in 18 U.1 (E) GUIDELINES M ANUAL November 1. 2009 Non-Applicability of Chapter Three Adjustments.— (A) Definitions.§2B1.S.S. or both. "sophisticated means" means especially complex or especially intricate offense conduct pertaining to the execution or concealment of an offense.C. Conduct such as hiding assets or transactions. – 92 – . (B) (C) 9.1.—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. (ii) 8.— (i) Subsection (b)(8)(A).—For purposes of subsection (b)(10): "Authentication feature" has the meaning given that term in 18 U.—For purposes of subsection (b)(9)(C).S. the Commonwealth of Puerto Rico. Application of Subsection (b)(10). do not apply that adjustment under §3C1.3. Subsection (b)(8)(B) and (C). and (II) a scanning receiver referred to in 18 U. § 1029(a)(8). and (ii) includes a telecommunications instrument that has been modified or altered to obtain unauthorized use of telecommunications service.C.S. § 1029(e)(8). "United States" means each of the 50 states.C.— (A) Definition of United States.

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

Application of Subsection (b)(14)(B).— (A) Application of Subsection (b)(14)(B)(i). vessel. which is obtained directly or indirectly as a result of such offense. – 94 – .g. rather than to all participants.—The following is a non-exhaustive list of factors that the court shall consider in determining whether. real or personal.000. The financial institution was so depleted of its assets as to be forced to merge with another institution in order to continue active operations. (B) 12. vessel. Forging another individual’s signature is not producing another means of identification. as a result of the offense. or investment. tangible or intangible.000.1 (II) GUIDELINES M ANUAL November 1.—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.—For purposes of this subsection.—"Gross receipts from the offense" includes all property.— (A) In General. "vehicle" means motor vehicle. the defendant shall be considered to have derived more than $1. Gross Receipts Enhancement under Subsection (b)(14)(A). For purposes of this subsection. or (B) goods or chattels that are part of a cargo shipment. Application of Subsection (b)(12).. bus. 11. Definition.—For purposes of subsection (b)(14)(A). exceeded $1. The financial institution substantially reduced benefits to pensioners or insureds. A "cargo shipment" includes cargo transported on a railroad car. steamboat.S.—Subsection (b)(12) provides a minimum offense level in the case of an ongoing. the safety and soundness of a financial institution was substantially jeopardized: (i) (ii) (iii) The financial institution became insolvent. § 982(a)(4). 10. or aircraft. 2009 A defendant forges another individual’s signature to cash a stolen check. (iv) (B) Application of Subsection (b)(14)(B)(ii). The financial institution was unable on demand to refund fully any deposit. regardless of the number of individuals in whose name (or other identifying information) the means of identification were so produced or so obtained. an auto theft ring or "chop shop") to steal or to receive stolen (A) vehicles or vehicle parts. "organization" has the meaning given that term in Application Note 1 of §8A1. (D) Application of Subsection (b)(10)(C)(ii).000. payment. See 18 U. or airplane.§2B1.C.1 (Applicability of Chapter Eight).000 in gross receipts if the gross receipts to the defendant individually. sophisticated operation (e.— (i) Definition.

mass transit.S. § 1 et seq. Application of Subsection (b)(16). and airports). 2009 GUIDELINES MANUAL §2B1. the company was delisted from its primary listing exchange. and – 95 – .S. The organization substantially reduced its employee pension benefits. airlines. financing and banking systems. and delivery systems.—For purposes of subsection (b)(17): "Commodities law" means (i) the Commodity Exchange Act (7 U. fire. economic security. United States Code). water supply systems.— (A) Definitions. The liquidity of the equity securities of a publicly traded company was substantially endangered. For example. storage.000 employees was substantially endangered: (I) The organization became insolvent or suffered a substantial reduction in the value of its assets. (II) (III) (IV) (V) (VI) 13. telecommunications networks.—For purposes of subsection (b)(16): "Critical infrastructure" means systems and assets vital to national defense. (B) Subsection (b)(16)(A)(iii). public health or safety.). or trading of the company’s securities was halted for more than one full trading day. the solvency or financial security of an organization that was a publicly traded company or that had more than 1. 11.— (A) Definitions. or 13 of the Bankruptcy Code (title 11. § 1030(e)(9). A critical infrastructure may be publicly or privately owned. Examples of critical infrastructures include gas and oil production. and government operations that provide essential services to the public. transportation systems and services (including highways. do not apply the enhancement under subsection (b)(14)(B). The organization filed for bankruptcy under Chapters 7. as a result of the offense. The organization substantially reduced its workforce. 14. emergency services (including medical.November 1. Application of Subsection (b)(17). "Government entity" has the meaning given that term in 18 U.C. electrical power delivery systems. national security. and rescue services).—The following is a non-exhaustive list of factors that the court shall consider in determining whether.—If the same conduct that forms the basis for an enhancement under subsection (b)(16)(A)(iii) is the only conduct that forms the basis for an enhancement under subsection (b)(14)(B). The organization suffered a substantial reduction in the value of its equity securities or the value of its employee retirement accounts. or any combination of those matters. police.1 (ii) In General.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. and (ii) includes the rules. § 1a(5)). § 78c(a)(47)). do not apply §3B1.C. "Securities law" (i) means 18 U.C.C.—Subsection (c)(3) provides a cross reference to another guideline in Chapter Two (Offense Conduct) in cases in which the defendant is convicted of a general fraud statute. § 1001.C. and the count of conviction establishes an offense involving fraudulent conduct that is more aptly covered by another guideline.S.C. and orders issued by the Commodity Futures Trading Commission. "Commodity pool operator" has the meaning given that term in section 1a(5) of the Commodity Exchange Act (7 U.S.§2B1.3.C. even if the officer is convicted only of wire fraud. 2009 (ii) includes the rules. or a similarly general statute. "Futures commission merchant" has the meaning given that term in section 1a(20) of the Commodity Exchange Act (7 U.1 GUIDELINES M ANUAL November 1. § 80b-2(a)(11)).S. "Person associated with a broker or dealer" has the meaning given that term in section 3(a)(18) of the Securities Exchange Act of 1934 (15 U.S.S. regulations. Nonapplicability of §3B1.S. and orders issued by the Securities and Exchange Commission pursuant to the provisions of law referred to in such section.C. "Investment adviser" has the meaning given that term in section 202(a)(11) of the Investment Advisers Act of 1940 (15 U. § 1a(6)). (B) In General. 1350. 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. – 96 – . "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. "Commodity trading advisor" has the meaning given that term in section 1a(6) of the Commodity Exchange Act (7 U.C.—A conviction under a securities law or commodities law is not required in order for subsection (b)(17) to apply.3 (Abuse of Position of Trust or Use of Special Skill). § 80b-2(a)(17)).S. (C) 15.S. § 1a(23)). "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. § 1a(20)). § 78c(a)(18)).—If subsection (b)(17) applies. §§ 1348. Sometimes.C.S.C. § 78c(a)(48)). and the provisions of law referred to in section 3(a)(47) of the Securities Exchange Act of 1934 (15 U.C.S. regulations.S. For example. Cross Reference in Subsection (c)(3). offenses involving fraudulent statements are prosecuted under 18 U.

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

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

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

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

November 1. 666. 2008 (see Appendix C. amendment 551). amendments 719 and 725). and 661). national economic security. amendments 312 and 313). amendments 665. amendment 576). November 1. see Appendix A (Statutory Index). 655. Commentary Statutory Provisions: 15 U. amendment 617).1 effective November 1. amendment 617). amended effective January 15. § 78j and 17 C. November 1. 2007 (see Appendix C.F. amended effective June 15.1 effective November 1. 1988 (see Appendix C. Transmitting.1 (Theft. amendment 10). 2008 (see Appendix C. amendment 551). For additional statutory provision(s). 1987. 2003 (see Appendix C. amendment 576).2. November 1. §2B1. amendments 312 and 361). amendments 653. November 1. amendments 99-101 and 303). November 1. 2006 (see Appendix C. effective November 1. Property Destruction. January 25.000. June 15.2 (Receiving.3. amendments 481 and 482). 1990 (see Appendix C. 317.3 (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. and 361). amendments 685 and 696). 1993 (see Appendix C.10b-5. November 1. 1988 (see Appendix C. 2002 (see Appendix C. 1997 (see Appendix C.—Section 3B1. November 1. national public health or safety. Transporting. 1993 (see Appendix C. 1987. 2009 GUIDELINES MANUAL §2B1. 1995 (see Appendix C. November 1. 700. §2B1. 654.R. amendment 679). 733. or Possessing Stolen Property). November 1. November 1. amendments 312. 2003 (see Appendix C. Historical Note: Effective November 1. Insider Trading (a) (b) Base Offense Level: 8 Specific Offense Characteristic (1) If the gain resulting from the offense exceeded $5. and 674). 1998 (see Appendix C. Examples might include a corporate president or an attorney who misused information – 101 – . November 1. 638. November 1. 1997 (see Appendix C. [Deleted] Historical Note: Section 2B1. November 1. and 702). and Fraud) corresponding to that amount. amendments 637. November 1. 2009 (see Appendix C. 1998 (see Appendix C. November 1. 2004 (see Appendix C. November 1. [Deleted] Historical Note: Section 2B1.4. amendment 7). amendments 102-104). November 1. 1991 (see Appendix C. 1988 (see Appendix C. amendment 714). § 240. 2000 (see Appendix C. 2005 (see Appendix C.C. 2001 (see Appendix C. 1988 (see Appendix C. 1990 (see Appendix C. increase by the number of levels from the table in §2B1. 1989 (see Appendix C. amendments 726. amendment 647). Application of Subsection of §3B1.S.November 1. amendment 481). §2B1.3. amendment 9). and 737). February 6. amendment 512). amendment 596). and November 1. November 1. 2001 (see Appendix C. effective November 1. Amended effective June 15.3 (Property Damage or Destruction). November 1. Application Note: 1. was deleted by consolidation with §2B1. 1989 (see Appendix C. November 1. amendment 8). 1990 (see Appendix C. 1987. or a combination of any of these matters. amendments 699. Transferring. was deleted by consolidation with §2B1.4 have on national security. amendments 364 and 393). and 646).

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

S. Commentary Statutory Provisions: 16 U. 18 U. 2314-2315. or destructive device.S.C. § 10. 707(b).F. 668(a). or property damage by the use of any explosive. as defined in 16 U. §§ 541-546.R. A cultural item. as defined in 16 U. If the resulting offense level is less than level 14. 1168. "cultural heritage resource" means any of the following: (A) A historic property. § 470bb(1) (see also section 3(a) of 43 C.R.2(d)). increase by 2 levels.R. §§ 470ee. as defined in section 2(3) of the Native American Graves Protection and Repatriation Act. 668.November 1. the following: – 103 – . § 668(a)(2). (c) Cross Reference (1) If the offense involved arson. as defined in 18 U. 2009 GUIDELINES MANUAL §2B1. 666.F. 7.C. A historic resource. 32 C.C.F. § 470w(5) (see also section 16(l) of 36 C. An archaeological resource.C. as applicable to the particular resource involved. the value of the cultural heritage resource shall include. and 2604.C. pt. 25 U. explosive material. An object of cultural heritage.S. 661-662. apply §2K1.—For purposes of this guideline.F. "Cultural Heritage Resource" Defined.F. 554.C. pt. and (B) includes any national monument or national memorial. 1152-1153. 1163.S. (B) (C) (D) (E) (F) (G) 2. 18 C. § 1002(c)). as described in 19 U. 299. Property Damage by Use of Explosives). 2232. 1312). pt. pt. 1369.C. §§ 2601(2)(ii).S. 2601(7). Value of the Cultural Heritage Resource Under Subsection (b)(1).R. 1170. increase to level 14.F. § 470w(5). (A) General Rule.S.R. 36 C.S.R. 641. 800).4 (Arson.S. 1361.S. Application Notes: 1.—This application note applies to the determination of the value of the cultural heritage resource under subsection (b)(1).—For purposes of subsection (b)(1). 296. A commemorative work. § 3001(3) (see also 43 C. pt. Designated ethnological material.C. "Commemorative work" (A) has the meaning given that term in section 2(c) of Public Law 99–652 (40 U.C. as defined in 16 U. if the resulting offense level is greater than that determined above.5 (6) If a dangerous weapon was brandished or its use was threatened.

(II) reconstruction and stabilization of ground contour and surface.F.R. § 1312. the court need only make a reasonable estimate of the value of the cultural heritage resource based on available information. (IV) the construction of physical barriers and other protective devices. (V) examination and analysis of the cultural heritage resource as part of efforts to salvage remaining information about the resource. including (I) its reconstruction and stabilization. 32 C.R.—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. 36 C.) (C) (ii) (iii) (D) Determination of Value in Cases Involving a Variety of Cultural Heritage Resources.F.R.R. 32 C. § 1312. § 296. (See 43 C.F.14(c). (See 43 C.14(c). and preparing reports.R.—In a case involving a variety of cultural heritage resources.14(b).14(b).14(b).) The commercial value.) "Cost of restoration and repair" includes all actual and projected costs of curation.14(a).) "Commercial value" of a cultural heritage resource means the fair market value of the cultural heritage resource at the time of the offense. conducting laboratory analysis. as would be necessary to realize the information potential. § 668(a)(1) except that the museum may be situated outside the United States. and appropriate reburial of. The cost of restoration and repair. § 1312.R.14(a). Definitions. Enhancement in Subsection (b)(2).R. the cultural heritage resource. 18 C. § 229.R. and any other actual and projected costs to complete restoration and repair of the cultural heritage resource. 18 C. and consultation with respect to.F. 3. 32 C. 2009 The archaeological value.R. (Archaeological value shall be included in the case of any cultural heritage resource that is an archaeological resource.14(c). § 229.14(b).R. (See 43 C. § 7.14(a).S.§2B1. 36 C. § 7.F.R. § 229.14(c). § 7. the value of the cultural heritage resources is the sum of all calculations made for those resources under this application note.F.F. 18 C. disposition. including the cost of preparing a research design.5 (i) GUIDELINES M ANUAL November 1.14(a). (ii) (iii) (B) Estimation of Value. (III) research necessary to conduct reconstruction and stabilization. § 296.F. conducting field work. and (VI) preparation of reports. § 296. 36 C. – 104 – .F.—For purposes of subsection (b)(2): (A) "Museum" has the meaning given that term in 18 U.—For purposes of subsection (b)(1).F.R.F.C.F.

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

5 5. Computation of Criminal History Points. an upward departure may be warranted.2(d). including a governmental entity.e.—For purposes of subsection (b)(5). Part D (Multiple Counts). (B) 7. multiple counts involving cultural heritage offenses covered by this guideline are grouped together under subsection (d) of §3D1. whether monetary or in goods or services. or a private forprofit organization. 2009 Pecuniary Gain and Commercial Purpose Enhancement Under Subsection (b)(4). "for pecuniary gain" means for receipt of.3 (Relevant Conduct)). "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. or destruction of. Multiple counts involving cultural heritage offenses covered by this guideline and offenses covered by other guidelines are not to be grouped under §3D1. Dangerous Weapons Enhancement Under Subsection (b)(6). anything of value. Pattern of Misconduct Enhancement Under Subsection (b)(5). damage to. 9. as well as activities designed to increase gross revenue. "brandished" and "dangerous weapon" have the meaning given those terms in Application Note 1 of the Commentary to §1B1. – 106 – .2 (Groups of Closely Related Counts). offenses committed for pecuniary gain include both monetary and barter transactions. Multiple Counts. GUIDELINES M ANUAL November 1.1 (Application Instructions). Commercial Purpose. (B) 6. 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).— (A) Definition.—There may be cases in which the offense level determined under this guideline substantially understates the seriousness of the offense. 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. the offense involved theft of. whether for a fee or donation and whether by an individual or an organization.§2B1.—For purposes of Chapter Three.—The acquisition of cultural heritage resources for display to the public. that did not occur during the course of the instant offense of conviction and all relevant conduct under §1B1. For example.—For purposes of subsection (b)(6).—For purposes of subsection (b)(4). In such cases. an upward departure may be warranted if (A) in addition to cultural heritage resources. Upward Departure Provision.—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. a private non-profit organization. Part A (Criminal History). shall be considered to involve a "commercial purpose" for purposes of subsection (b)(4).— (A) "For Pecuniary Gain".. or (B) the offense 8. Therefore. or in anticipation of receipt of.

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

2. increase by 2 levels. If the loss exceeded $2. 2005 (see Appendix C. increase by 2 levels. If a firearm.1 (Procedure for Determining Offense Level on Multiple Counts) and 5G1.500. or 12. * * * * * 2.1. Burglary of a Residence or a Structure Other than a Residence (a) Base Offense Level: (1) (2) (b) 17. If a dangerous weapon (including a firearm) was possessed. if a residence.000 More than $1. (4) Commentary – 108 – .500 or less More than $2. amendment 677).000 More than $5. or if the taking of such item was an object of the offense. or controlled substance was taken. increase the offense level as follows: Loss (Apply the Greatest) (A) (B) (C) (D) (E) (F) (G) (H) (I) (3) $2.500. 2009 guideline. if a structure other than a residence.000 More than $50.000.6 GUIDELINES M ANUAL November 1. Historical Note: Effective November 1. See §§3D1.500. increase by 1 level.000 More than $250.000 Increase in Level no increase add 1 add 2 add 3 add 4 add 5 add 6 add 7 add 8. destructive device.000 More than $2.000 More than $800.500 More than $10. Such offenses are excluded from application of those chapters because the guideline sentence for each offense is determined only by the relevant statute.§2B1. BURGLARY AND TRESPASS §2B2. Specific Offense Characteristics (1) (2) If the offense involved more than minimal planning.

Amended effective January 15. (E) at a residence. For additional statutory provision(s). More than Minimal Planning.November 1. 2113(a). amendments 315 and 361). but not use. amendment 13). Weapon use would be a ground for upward departure. June 15.S. is a specific offense characteristic because use of a weapon (including to threaten) ordinarily would make the offense robbery.C. 1989 (see Appendix C. 2. 2115. November 1. effective November 1. checking the area to make sure no witnesses were present would not alone constitute more than minimal planning. For example. "More than minimal planning" shall be considered to be present in any case involving repeated acts over a period of time. was deleted by consolidation with §2B2. (F) at – 109 – . Trespass (a) (b) Base Offense Level: 4 Specific Offense Characteristics (1) If the trespass occurred (A) at a secure government facility." "destructive device. "More than minimal planning" also exists if significant affirmative steps were taken to conceal the offense. §2B2. §2B2. Subsection (b)(4) does not apply to possession of a dangerous weapon (including a firearm) that was stolen during the course of the offense. November 1. 1993 (see Appendix C. damaged.—"More than minimal planning" means more planning than is typical for commission of the offense in a simple form. 2118(b). Weapon possession. 4. November 1. November 1.2. obtaining building plans to plot a particular course of entry. unless it is clear that each instance was purely opportune. or disabling an alarm system. 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.1 (Application Instructions). November 1. or destroyed. amended effective June 15. [Deleted] Historical Note: Section 2B2." and "dangerous weapon" are defined in the Commentary to §1B1. 1990 (see Appendix C. Application Notes: 1. 1989 (see Appendix C. 2009 GUIDELINES MANUAL §2B2. 1988 (see Appendix C. 1987. see Appendix A (Statutory Index). 1990 (see Appendix C. amendment 481). amendment 617). 1993 (see Appendix C. amendments 105 and 106). other than conduct to which §3C1. §§ 1153.3. "Loss" means the value of the property taken. amendments 315 and 361).1 effective November 1. amendment 107). and November 1. (C) on a vessel or aircraft of the United States. 2001 (see Appendix C.1 (Obstructing or Impeding the Administration of Justice) applies. 2117. 3. amendment 12).2 (Burglary of Other Structures). (D) in a secure area of an airport or a seaport. would constitute more than minimal planning. 1987. Historical Note: Effective November 1. amendment 481). amendment 11). (B) at a nuclear energy facility. 1988 (see Appendix C. "Firearm. By contrast.3 Statutory Provisions: 18 U. 1988 (see Appendix C.

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

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

000 More than $2.000 or less More than $10. or If the degree of injury is between that specified in subdivisions (B) and (C).1 (First Degree Murder). § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States. §§ 1951. increase by 2 levels. that the cumulative adjustments from (2) and (3) shall not exceed 11 levels. Commentary Statutory Provisions: 18 U.000 More than $50. however.C. or (B) if any person was physically restrained to facilitate commission of the offense or to facilitate escape. destructive device. or controlled substance was taken. or if the taking of such item was an object of the offense.000.500. apply §2A1. increase the offense level as follows: Loss (Apply the Greatest) (A) (B) (C) (D) (E) (F) (G) (H) (c) $10. 2118(a).000 More than $800. (E) Provided. If the loss exceeded $10. 2113.000.S. increase by 1 level.000 Increase in Level no increase add 1 add 2 add 3 add 4 add 5 add 6 add 7.§2B3. increase by 4 levels. increase by 2 levels. 2114.000 More than $1. (4) (A) If any person was abducted to facilitate commission of the offense or to facilitate escape. add 5 levels. For additional statutory provision(s). see Appendix A (Statutory Index).1 (C) (D) GUIDELINES M ANUAL November 1.S.000 More than $5.000 More than $250. If the offense involved carjacking. – 112 – . If a firearm. add 3 levels. 2119.500. (5) (6) (7) Cross Reference (1) If a victim was killed under circumstances that would constitute murder under 18 U. 2009 Permanent or Life-Threatening Bodily Injury add 6 If the degree of injury is between that specified in subdivisions (A) and (B).C.

"Give me your money or else (where the defendant draws his hand across his throat in a slashing motion)". The guideline provides for a range of enhancements where these factors are present. physical injury." "destructive device. Background: Possession or use of a weapon. If the defendant intended to murder the victim.1 Application Notes: 1. or destroyed. and unlawful restraint sometimes occur during a robbery." "bodily injury. "Carjacking" means the taking or attempted taking of a motor vehicle from the person or presence of another by force and violence or by intimidation. gesture." "permanent or life-threatening bodily injury.. For example. 4. act. 2009 GUIDELINES MANUAL §2B3. 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. "Give me the money or I will shoot you". Consistent with Application Note 1(d)(ii) of §1B1. a fear of death. see §2A2. "Loss" means the value of the property taken. an upward departure may be warranted. 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." "otherwise used. – 113 – . 2. an oral or written demand using words such as "Give me the money or I will kill you". "Give me the money or I will pull the pin on the grenade I have in my pocket". who is a victim of the offense. The combined adjustments for weapon involvement and injury are limited to a maximum enhancement of 11 levels.g. because of the relatively high base offense level for robbery.1 (Application Instructions)." and "physically restrained" are defined in the Commentary to §1B1. Moreover. a defendant wrapped a hand in a towel during a bank robbery to create the appearance of a gun)." "brandished." "dangerous weapon." "serious bodily injury. Although in pre-guidelines practice the amount of money taken in robbery cases affected sentence length. 3. "Firearm. or combination thereof. the gradations for property loss increase more slowly than for simple property offenses." "abducted.November 1. Accordingly. the defendant does not have to state expressly his intent to kill the victim in order for the enhancement to apply. may be in the form of an oral or written statement. 6.1 (Assault with Intent to Commit Murder. "A threat of death. 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. Accordingly. an increase of 1 or 2 levels brings about a considerable increase in sentence length in absolute terms. or "Give me the money or you are dead" would constitute a threat of death." as used in subsection (b)(2)(F). damaged. 5. its importance was small compared to that of the other harm involved.1 (Application Instructions).

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

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

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

Historical Note: Effective November 1. Giving. Background: Under 18 U.C. Extortion Under Color of Official Right.000. apply §2B3. § 873) is defined as a threat to disclose a violation of United States law unless money or some other item of value is given. 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. 1989 (see Appendix C. or Receiving a Bribe. may also be prosecuted under 18 U.3.000. increase by the number of levels from the table in §2B1.November 1.C. §§ 873. November 1. amendment 114). and Fraud) corresponding to that amount. 875-877. or other threats that are less serious than those covered by §2B3. Soliciting. or (B) exceeded $5. November 1. the maximum term of imprisonment authorized for blackmail is one year.1 (Offering.3 §2B3.2. 2009 GUIDELINES MANUAL §2B3. Property Destruction. 2001 (see Appendix C. see Appendix A (Statutory Index). Extortionate threats to injure a reputation. §§ 875-877.S.S. For additional statutory provision(s). which carry higher maximum sentences.000 but did not exceed $5.C. Conspiracy to Defraud by Interference with Governmental Functions). Commentary (2) Statutory Provisions: 18 U. 1951. * * * * * – 117 – .2 (Extortion by Force or Threat of Injury or Serious Damage). "Blackmail" (18 U. § 873. amendment 679).C. amendment 617). November 1. Amended effective November 1. 1987.S.S. This section applies only to blackmail and similar forms of extortion where there clearly is no threat of violence to person or property. Fraud Involving the Deprivation of the Intangible Right to Honest Services of Public Officials. If the offense involved extortion by force or threat of injury or serious damage. amendment 479). increase by 1 level. apply §2C1. 2005 (see Appendix C. Application Note: 1. (c) Cross References (1) If the offense involved extortion under color of official right.1 (Theft. 1993 (see Appendix C.

1 (Theft.§2B4.4 (Base Fine). if any such officials are involved.000. foreign governments. This guideline covers commercial bribery offenses and kickbacks that do not involve officials of federal.S. use the greatest of: (A) the value of the unlawful payment. 42 U. increase by the number of levels from the table in §2B1.C. 225. Application Notes: 1. 224. increase by 1 level.000 but did not exceed $5. and Fraud) corresponding to that amount.C. § 11902.S. increase to level 24.1 4.S. For additional statutory provision(s). 2009 COMMERCIAL BRIBERY AND KICKBACKS §2B4.(2). 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 $2.000. See Part C. Offenses Involving Public Officials. (2) (B) If the resulting offense level determined under subdivision (A) or (B) is less than level 24.S. or (C) the consequential damages resulting from the unlawful payment. increase by 2 levels. §§ 215. or local government. increase by 4 levels.1. see Appendix A (Statutory Index). (Apply the greater) If— (A) the defendant derived more than $1. or public international organizations. §§ 53. §§ 1395nn(b)(1). (2). Commentary Statutory Provisions: 18 U.000. 49 U. Property Destruction.C. 1396h(b)(1). state.C. – 118 – . (B) the value of the benefit received or to be received in return for the unlawful payment.000 in gross receipts from one or more financial institutions as a result of the offense. 26 U. 54. or (B) exceeded $5.S. §§ 9012(e).Organizations (1) In lieu of the pecuniary loss under subsection (a)(3) of §8C2. or the offense substantially jeopardized the safety and soundness of a financial institution. 9042(d). GUIDELINES M ANUAL November 1.C. 41 U. (c) Special Instruction for Fines .

Soliciting." as used in this guideline. brokers and dealers registered.November 1. futures commodity merchants and commodity pool operators registered. – 119 – . disability.g. the offense level is that applicable to the underlying series of offenses comprising the "continuing financial crimes enterprise. insurance company. real or personal. an offense shall be considered to have substantially jeopardized the safety and soundness of a financial institution if. §§ 20. medical or hospitalization insurance) to large numbers of persons. the institution (A) became insolvent. Giving..1 (Offering. rather than to all participants.000 in gross receipts if the gross receipts to the defendant individually. Background: This guideline applies to violations of various federal bribery statutes that do not involve governmental officials.1 2.. If the defendant is convicted under 18 U. or required to be registered.—For purposes of subsection (b)(2)(A). savings (building and loan) association. Fraud Involving the Deprivation of the Intangible Right to Honest Services of Public Officials. or required to be registered. medical or hospital insurance association. medical. § 982(a)(4).000.S. unions. tangible or intangible. "Financial institution. credit union.— (A) In General. and any similar entity.C. exceeded $1.C. with the Commodity Futures Trading Commission. or investment. and 1014.000. any state or foreign bank.S. mutual fund. any health. payment.C." 6. the defendant shall be considered to have derived more than $1.—"Gross receipts from the offense" includes all property. primarily include large pension funds that serve many individuals (e. or (E) was placed in substantial jeopardy of any of subdivisions (A) through (D) of this note. (D) was so depleted of its assets as to be forced to merge with another institution in order to continue active operations. (B) 5." as used above. which is obtained directly or indirectly as a result of such offense. Gross Receipts Enhancement under Subsection (b)(2)(A). is defined to include any institution described in 18 U. as a consequence of the offense. 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. whether or not insured by the federal government. "Union or employee pension fund" and "any health. whichever is greater. 656. (B) substantially reduced benefits to pensioners or insureds. 657. 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. See 18 U.S. (C) was unable on demand to refund fully any deposit. See Commentary to §2C1. trust company. 2009 GUIDELINES MANUAL §2B4. 4. or Receiving a Bribe.g.000. Enhancement for Substantially Jeopardizing the Safety and Soundness of a Financial Institution under Subsection (b)(2)(B). union or employee pension fund. 3. pension funds of large national and international organizations. with the Securities and Exchange Commission. and associations that undertake to provide pension. or hospital insurance association. or other benefits (e. 1005-1007.—For purposes of subsection (b)(2)(B). and corporations doing substantial interstate business). Conspiracy to Defraud by Interference with Governmental Functions). Extortion Under Color of Official Right. Definition. investment company. § 225 (relating to a continuing financial crimes enterprise).

amendment 468). in a broader form. These offenses are prohibited under 26 U.000 to shave points in a nationally televised basketball game. Subsection (b)(2)(B) implements the instruction to the Commission in section 2507 of Public Law 101-647.S. November 1.S.S. 1991 (see Appendix C. 2004 (see Appendix C. Amended effective November 1. the value of the action to the gambler would be the amount that he and his confederates won or stood to gain. §§ 51. 1990 (see Appendix C. November 1.000 bribe.1 GUIDELINES M ANUAL November 1. 1992 (see Appendix C.S.C. and the savings in interest over the life of the loan compared with alternative loan terms. Violations of 42 U. 41 U. Subsection (b)(2)(A) implements. amendment 317). §§ 1396h(b)(1) and (b)(2) cover the offer or acceptance of a payment for referral to the Medicaid program.C. §§ 9012(e) and 9042(d). amendments 639 and 646). 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. amendment 553). § 215. November 1. would use the greater of the $25. If that amount could not be estimated. amendment 617). for example. Historical Note: Effective November 1. November 1. which apply to candidates for President and Vice President whose campaigns are eligible for federal matching funds. Thus.C. this guideline considers not only the amount of the bribe but also the value of the action received in return.C. 1987.000 bribe to approve a $250. the amount of the bribe would be used to determine the appropriate increase in offense level. November 1. Similar provisions in 42 U. As with non-commercial bribery. the court. § 224.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.000 loan under terms for which the applicant would not otherwise qualify. if a bank officer agreed to the offer of a $25. involve the offer or acceptance of a payment to refer an individual for services or items paid for under the Medicare program. sports bribery.S. If a gambler paid a player $5. amendments 364 and 422). 1997 (see Appendix C. 2002 (see Appendix C. 2009 One of the more commonly prosecuted offenses to which this guideline applies is offering or accepting a fee in connection with procurement of a loan from a financial institution in violation of 18 U. * * * * * – 120 – . 2001 (see Appendix C. in increasing the offense level.C. §§ 1395nn(b)(1) and (b)(2). as well as certain violations of the Interstate Commerce Act. 53-54. amendment 666). the instruction to the Commission in section 961(m) of Public Law 101-73. This guideline also applies to violations of 18 U.§2B4. November 1.C.

increase by 1 level. or (iii) a feature or device essentially identical to a distinctive counterfeit deterrent.1. or (B) exceeded $5.1 (Theft. increase to level 13. 1993 (see Appendix C. 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. 1003. and the offense level determined under that subsection is less than level 15. If the defendant (A) manufactured or produced any counterfeit obligation or security of the United States.—For purposes of this guideline: "Counterfeit" refers to an instrument that has been falsely made. or altered. 500. 2009 GUIDELINES MANUAL §2B5. Definitions. Application Notes: 1. (ii) genuine United States currency paper from which the ink or other distinctive counterfeit deterrent has been completely or partially removed. increase by 2 levels. increase by 2 levels. COUNTERFEITING AND INFRINGEMENT OF COPYRIGHT OR TRADEMARK Historical Note: Effective November 1. manufactured. §§ 470-474A.000. (2) (3) (4) (5) Commentary Statutory Provisions: 18 U. If a dangerous weapon (including a firearm) was possessed in connection with the offense. Property Destruction. For example.000 but did not exceed $5. – 121 – . If subsection (b)(2)(A) applies. 476. For additional statutory provision(s). and Fraud) corresponding to that amount. an instrument that has been falsely made or manufactured in its entirety is "counterfeit". see Appendix A (Statutory Index).C. or (B) controlled or possessed (i) counterfeiting paper similar to a distinctive paper. increase by the number of levels from the table in §2B1. 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).1 5. If any part of the offense was committed outside the United States. increase by 2 levels. 477. or possessed or had custody of or control over a counterfeiting device or materials used for counterfeiting. 1987.November 1. §2B5. amendment 481). increase to level 15.S.000. If the resulting offense level is less than level 13. Amended effective November 1. 501.

i. respectively. the Commonwealth of Puerto Rico. Guam.§2B5. 1988 (see Appendix C. amendment 587). November 1. Criminal Infringement of Copyright or Trademark (a) (b) Base Offense Level: 8 Specific Offense Characteristics (1) If the infringement amount (A) exceeded $2. 1993 (see Appendix C. and American Samoa. amendment 731). an enhancement is provided for a defendant who produces.1 (Theft. Property Destruction. amendment 554). "United States" means each of the fifty states. Similarly. amendments 595 and 605). 3.. 2001 (see Appendix C. 1987.1 GUIDELINES M ANUAL November 1. November 1. November 1. amendments 617 and 618). amendment 513). 2009 "Distinctive counterfeit deterrent" and "distinctive paper" have the meaning given those terms in 18 U. Amended effective January 15. increase by the number of levels from the table in §2B1. November 1. amendment 115). amended effective January 15.e. 1997 (see Appendix C. 1989 (see Appendix C. Inapplicability to Certain Obviously Counterfeit Items. effective November 1. Applicability to Counterfeit Bearer Obligations of the United States. the instruction to the Commission in section 110512 of Public Law 103-322. 2. amendment 116). amendment 16). the District of Columbia. § 474A(c)(2) and (1). Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States).—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. was deleted by consolidation with §2F1. treasury bills. that are not made out to a specific payee. 2000 (see Appendix C. 2009 (see Appendix C.2 (Forgery. 1988 (see Appendix C. 1995 (see Appendix C. November 1.1 effective November 1. 1987. §2B5. [Deleted] Historical Note: Section 2B5.S. the United States Virgin Islands. 1989 (see Appendix C.— This guideline applies to counterfeiting of United States currency and coins. increase by 1 level. or (B) exceeded $5. Historical Note: Effective November 1.2. and Fraud) corresponding to that amount. November 1. November 1. 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. in a broader form. amendment 481).3. the counterfeit items.C. postage stamps. bearer bonds and other items that generally could be described as bearer obligations of the United States.000. food stamps.000 but did not exceed $5. 1998 (see Appendix C. – 122 – . rather than merely passes. the Northern Mariana Islands. Subsection (b)(4) implements. amendment 17) and November 1.000.

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

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

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

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

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

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

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

November 1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases). and (B) the defendant committed. increase to level 27. a controlled substance to that individual. an adjustment under §3A1. 2009 GUIDELINES MANUAL §2D1. as appropriate.S. apply §2A1. or attempted to commit. (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. Solicitation. If the resulting offense level is less than level 27. apply §2X1. If the resulting offense level is less than level 30.1 (i) the defendant was convicted under 21 U. § 841(b)(7) (of distributing a controlled substance with intent to commit a crime of violence). and (ii) created a substantial risk of harm to the life of a minor or an incompetent.1 (Attempt. § 860a of manufacturing. increase to level 30. if the resulting offense level is greater than that determined under this guideline. with or without that individual’s knowledge. if the resulting offense level is greater than that determined above. or attempted or intended to commit. or Conspiracy) in respect to the crime of violence that the defendant committed.1(b)(1) shall apply. (2) (e) Special Instruction (1) If (A) subsection (d)(2) does not apply. methamphetamine on premises where a minor is present or resides. (11) If the defendant meets the criteria set forth in subdivisions (1)-(5) of subsection (a) of §5C1.1 (First Degree Murder) or §2A1. [Subsection (c) (Drug Quantity Table) is set forth on the following pages. (ii) increase by 3 levels.C.S.S.C. If the defendant was convicted under 21 U. – 141 – . decrease by 2 levels. 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 possessing with intent to manufacture.C.2 (Second Degree Murder). or (II) the environment. a sexual offense against another individual by distributing.] (d) Cross References (1) If a victim was killed under circumstances that would constitute murder under 18 U. increase by 6 levels.

or at least 500 G but less than 1.000 units of Schedule I or II Depressants.5 KG of "Ice". or 3 KG or more of PCP (actual).000 KG of Marihuana. At least 1. At least 3 KG but less than 10 KG of Heroin.000. At least 2.000 units or more of Schedule I or II Depressants. M 30.5 KG or more of Cocaine Base. or at least 500 G but less than 1. M 300 G or more of LSD.5 KG of Cocaine Base. M 1. At least 5 KG but less than 15 KG of Amphetamine. M 30 KG or more of PCP. or 1.§2D1.000. or 1. At least 15 KG but less than 50 KG of Cocaine.5 KG of Cocaine Base.000 KG or more of Hashish. M 30.5 KG or more of Amphetamine (actual).000. M 30. or at least 500 G but less than 1.5 KG of Methamphetamine (actual). At least 3 KG but less than 10 KG of PCP. At least 1 KG but less than 3 KG of a Fentanyl Analogue.000. M 600 KG or more of Hashish Oil.5 KG but less than 4. M M M M M (2) M M M M M M M M M M At least 10 KG but less than 30 KG of Heroin.000 but less than 30. M 12 KG or more of Fentanyl.000 KG or more of Marihuana. M 4.000 KG but less than 30. 150 KG or more of Cocaine.000 units of Ketamine. At least 4 KG but less than 12 KG of Fentanyl.000 units or more of Flunitrazepam.5 KG or more of "Ice".5 KG of Amphetamine (actual). At least 10. At least 625. At least 50 KG but less than 150 KG of Cocaine. At least 10 KG but less than 30 KG of PCP.875.000. M 6.000.000 units of Flunitrazepam.000 but less than 1. or at least 300 G but less than 1 KG of PCP (actual). M 15 KG or more of Amphetamine.1 GUIDELINES MANUAL November 1.875. or 1.000 KG of Hashish. At least 10. M 3 KG or more of a Fentanyl Analogue.5 KG or more of Methamphetamine (actual).000 but less than 30. At least 100 G but less than 300 G of LSD. Level 36 (3) M M M M Level 34 – 142 – . M 15 KG or more of Methamphetamine. At least 500 G but less than 1. or at least 1 KG but less than 3 KG of PCP (actual). At least 10.000 units or more of Ketamine. 2009 (c) DRUG QUANTITY TABLE Controlled Substances and Quantity* (1) M M Base Offense Level Level 38 30 KG or more of Heroin. At least 5 KG but less than 15 KG of Methamphetamine. At least 200 KG but less than 600 KG of Hashish Oil.000 KG but less than 6.

M At least 1.2 KG of Fentanyl.5 KG but less than 5 KG of Methamphetamine. At least 1 KG but less than 3 KG of PCP. At least 350 G but less than 500 G of Methamphetamine. At least 500 G but less than 1.000. M At least 3.000 but less than 3.000. At least 1.000 KG of Marihuana.000 KG but less than 3. At least 280 G but less than 400 G of Fentanyl.500 but less than 187. At least 5 KG but less than 15 KG of Cocaine. At least 350 G but less than 500 G of Amphetamine. At least 500 G but less than 1. At least 200 KG but less than 600 KG of Hashish. M At least 300 G but less than 1 KG of a Fentanyl Analogue. At least 1.000 units of Ketamine. M At least 3. M At least 600 KG but less than 2. At least 62.000. or at least 35 G but less than 50 G of Amphetamine (actual). M At least 3.November 1.000.000. M At least 187. or at least 150 G but less than 500 G of Methamphetamine (actual). At least 7 G but less than 10 G of LSD.000 units of Flunitrazepam. or at least 50 G but less than 150 G of Methamphetamine (actual). Level 32 (5) M M M M M Level 30 M M M M – 143 – .000 units of Schedule I or II Depressants.000.000 KG of Marihuana. 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 Cocaine.500 but less than 625. At least 1.000. M At least 1.5 KG of Amphetamine.000 KG but less than 10. At least 70 G but less than 100 G of a Fentanyl Analogue. or at least 150 G but less than 500 G of "Ice". M At least 60 KG but less than 200 KG of Hashish Oil. or at least 50 G but less than 150 G of Amphetamine (actual). 2009 GUIDELINES MANUAL §2D1. or at least 100 G but less than 300 G of PCP (actual). At least 50 G but less than 150 G of Cocaine Base. At least 400 G but less than 1.000 units of Ketamine. At least 20 KG but less than 60 KG of Hashish Oil.000 but less than 3. At least 150 G but less than 500 G of Cocaine Base.000 KG of Hashish.2 KG but less than 4 KG of Fentanyl. or at least 70 G but less than 100 G of PCP (actual). or at least 35 G but less than 50 G of "Ice". At least 3.000 but less than 10.5 KG but less than 5 KG of Amphetamine. At least 10 G but less than 30 G of LSD. At least 700 G but less than 1 KG of PCP.5 KG of Methamphetamine.500 units of Flunitrazepam.000.000 but less than 10.000 units of Schedule I or II Depressants. or at least 150 G but less than 500 G of Amphetamine (actual). 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.1 At least 1. At least 700 G but less than 1 KG of Heroin. M At least 30 G but less than 100 G of LSD. or at least 50 G but less than 150 G of "Ice".

000 units of Schedule I or II Depressants. M At least 6.750 units of Flunitrazepam.000 units of Schedule III Hydrocodone.000 but less than 1.000 units of Ketamine. M At least 50 G but less than 200 G of Methamphetamine. At least 400 G but less than 700 G of PCP. M At least 40 G but less than 160 G of Fentanyl. At least 35 G but less than 50 G of Cocaine Base. M At least 100. At least 700. or at least 20 G but less than 35 G of "Ice".000. M At least 2 KG but less than 8 KG of Hashish Oil.§2D1. or at least 20 G but less than 35 G of Amphetamine (actual). or at least 10 G but less than 40 G of PCP (actual).000 but less than 700. M At least 100. or at least 5 G but less than 20 G of Amphetamine (actual).000. 700. M At least 100 G but less than 400 G of PCP. At least 25.000 units of Flunitrazepam. At least 700.000 units of Ketamine.000 or more units of Schedule III Hydrocodone.750 but less than 62.500 units of Flunitrazepam. At least 400. At least 400 G but less than 700 G of Heroin. M At least 100. At least 500 G but less than 2 KG of Cocaine. At least 400 KG but less than 700 KG of Marihuana. At least 43. M At least 10 G but less than 40 G of a Fentanyl Analogue.000 units of Ketamine. M At least 20 G but less than 35 G of Cocaine Base. M At least 1 G but less than 4 G of LSD.250 but less than 25.000 units of Schedule I or II Depressants. At least 200 G but less than 350 G of Amphetamine. 2009 At least 700 KG but less than 1.000 KG of Marihuana.000 but less than 700. At least 400.000 but less than 43. or at least 5 G but less than 20 G of Methamphetamine (actual).5 KG of Cocaine. or at least 5 G but less than 20 G of "Ice". M At least 100 KG but less than 400 KG of Marihuana.000 units of Schedule III Hydrocodone. At least 160 G but less than 280 G of Fentanyl. At least 140 KG but less than 200 KG of Hashish.000 but less than 400. At least 4 G but less than 7 G of LSD.000 but less than 700.000 units of Schedule I or II Depressants.1 M M M M M M M GUIDELINES MANUAL November 1. (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 200 G but less than 350 G of Methamphetamine. or at least 20 G but less than 35 G of Methamphetamine (actual). At least 40 G but less than 70 G of a Fentanyl Analogue.000 but less than 1. M M Level 26 – 144 – . At least 2 KG but less than 3.000 but less than 400.000 but less than 400. At least 8 KG but less than 14 KG of Hashish Oil. M At least 50 G but less than 200 G of Amphetamine. or at least 40 G but less than 70 G of PCP (actual). At least 14 KG but less than 20 KG of Hashish Oil. At least 80 KG but less than 140 KG of Hashish. M At least 20 KG but less than 80 KG of Hashish. At least 400.

At least 32 G but less than 40 G of Fentanyl. At least 30 G but less than 40 G of Amphetamine. At least 16 KG but less than 20 KG of Hashish. At least 8 G but less than 10 G of a Fentanyl Analogue. At least 4 G but less than 5 G of Cocaine Base. At least 60. At least 80 KG but less than 100 KG of Marihuana.000 but less than 100.000 but less than 100. M At least 3 G but less than 4 G of Cocaine Base. or at least 2 G but less than 3 G of Methamphetamine (actual). At least 30 G but less than 40 G of Methamphetamine. At least 3. At least 80.000 units of Ketamine.000 units of Schedule I or II Depressants.November 1. or at least 2 G but less than 3 G of "Ice". At least 24 G but less than 32 G of Fentanyl. At least 40 G but less than 50 G of Methamphetamine.250 units of Flunitrazepam. At least 12 KG but less than 16 KG of Hashish. At least 60 KG but less than 80 KG of Marihuana. At least 6 G but less than 8 G of a Fentanyl Analogue. At least 40 G but less than 50 G of Amphetamine. or at least 4 G but less than 5 G of Methamphetamine (actual). 2009 GUIDELINES MANUAL §2D1.000 but less than 6. At least 1.6 KG of Hashish Oil. M At least 200 G but less than 300 G of Cocaine.000 but less than 80. At least 5 G but less than 20 G of Cocaine Base.000 units of Flunitrazepam. Level 20 – 145 – . or at least 4 G but less than 5 G of "Ice". At least 80. At least 600 MG but less than 800 MG of LSD.000 units of Schedule III Hydrocodone.000 units of Ketamine. At least 300 G but less than 400 G of Cocaine. or at least 3 G but less than 4 G of Amphetamine (actual).2 KG but less than 1.000 units of Schedule III Hydrocodone. (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.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. or at least 6 G but less than 8 G of PCP (actual). At least 60 G but less than 80 G of PCP. At least 1.6 KG but less than 2 KG of Hashish Oil. At least 80 G but less than 100 G of PCP. or at least 3 G but less than 4 G of Methamphetamine (actual). or at least 4 G but less than 5 G of Amphetamine (actual).000 but less than 80. M At least 40 G but less than 60 G of PCP. or at least 3 G but less than 4 G of "Ice".000 but less than 80.000 but less than 100. At least 60. At least 80. M At least 20 G but less than 30 G of Methamphetamine.000 units of Schedule I or II Depressants. At least 5. At least 400 G but less than 500 G of Cocaine. At least 60. At least 800 MG but less than 1 G of LSD.750 but less than 5. or at least 4 G but less than 6 G of PCP (actual). At least 60 G but less than 80 G of Heroin. or at least 8 G but less than 10 G of PCP (actual).

000 but less than 40.000 units of Ketamine. M At least 50 G but less than 100 G of Cocaine. M 40. M At least 40 KG but less than 60 KG of Marihuana. Level 18 Level 16 – 146 – .000 but less than 40.000 units of Schedule I or II Depressants. or at least 1 G but less than 2 G of "Ice". M At least 20. M At least 8 KG but less than 12 KG of Hashish. M At least 400 MG but less than 600 MG of LSD.1 M GUIDELINES MANUAL November 1. M At least 10 G but less than 20 G of PCP.000 but less than 40.500 but less than 3. M At least 20. M At least 4 G but less than 6 G of a Fentanyl Analogue. M At least 5 KG but less than 8 KG of Hashish. M At least 10 G but less than 20 G of Amphetamine. M At least 8 G but less than 16 G of Fentanyl.250 but less than 2. or at least 2 G but less than 4 G of PCP (actual). M At least 40. or at least 1 G but less than 2 G of Amphetamine (actual).000 but less than 40.§2D1. M At least 1 G but less than 2 G of Cocaine Base.500 units of Flunitrazepam. M At least 20 G but less than 40 G of PCP.000 units of Schedule I or II Depressants. M At least 40. M At least 800 G but less than 1. M At least 5 G but less than 10 G of Amphetamine.750 units of Flunitrazepam.000 but less than 60. 2009 At least 20 G but less than 30 G of Amphetamine. or at least 1 G but less than 2 G of PCP (actual). M At least 100 G but less than 200 G of Cocaine. (11) M At least 20 G but less than 40 G of Heroin.000 but less than 60. M At least 20 KG but less than 40 KG of Marihuana. or at least 2 G but less than 3 G of Amphetamine (actual). M At least 500 G but less than 800 G of Hashish Oil.2 KG of Hashish Oil. M At least 2 G but less than 3 G of Cocaine Base. M At least 200 MG but less than 400 MG of LSD.000 units of Schedule III Hydrocodone. M At least 2 G but less than 4 G of a Fentanyl Analogue.000 or more units of Schedule III substances (except Ketamine or Hydrocodone). M At least 5 G but less than 10 G of Methamphetamine. M At least 10 G but less than 20 G of Methamphetamine. M At least 16 G but less than 24 G of Fentanyl.000 units of Ketamine. M At least 100 MG but less than 200 MG of LSD. M At least 20.000 units of Schedule III substances (except Ketamine or Hydrocodone). M At least 1. or at least 500 MG but less than 1 G of "Ice".000 units of Schedule III Hydrocodone. M At least 2. or at least 1 G but less than 2 G of Methamphetamine (actual). or at least 500 MG but less than 1 G of Amphetamine (actual). (12) M At least 10 G but less than 20 G of Heroin.000 but less than 60. M At least 20. M At least 40. or at least 500 MG but less than 1 G of Methamphetamine (actual).

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

M At least 16.5 KG of Marihuana.000 units of Schedule III Hydrocodone.§2D1. M At least 4.1 M M M M M M GUIDELINES MANUAL November 1.000 but less than 40.000 but less than 2.500 but less than 5. M Less than 250 units of Ketamine. 2009 At least 2.500 units of Schedule III Hydrocodone. M Less than 250 units of Schedule III substances (except Ketamine or Hydrocodone).000 units of Schedule IV substances (except Flunitrazepam).000 units of Ketamine. the weight of the entire mixture or substance is assigned to the controlled substance that results in the greater offense level. M At least 20 G but less than 50 G of Hashish Oil. M Less than 5 G of Hashish Oil.000 units of Schedule IV substances (except Flunitrazepam). M At least 1. M Less than 50 G of Hashish. M At least 250 but less than 1. M Less than 62 units of Flunitrazepam.000 units of Ketamine. M At least 50 G but less than 200 G of Hashish.000 units of Schedule IV substances (except Flunitrazepam). M At least 200 G but less than 500 G of Hashish. (17) M Less than 250 G of Marihuana.000 but less than 2.000 units of Schedule III substances (except Ketamine or Hydrocodone).500 but less than 5.500 units of Schedule I or II Depressants.000 but less than 2. M At least 250 but less than 1.000 units of Schedule V substances.000 but less than 16. M Less than 250 units of Schedule III Hydrocodone.000 or more units of Schedule IV substances (except Flunitrazepam). M At least 5 G but less than 20 G of Hashish Oil.000 units of Schedule I or II Depressants. M At least 250 but less than 1. M Less than 40. – 148 – .000 or more units of Schedule V substances. M At least 1. M 40.000 units of Schedule III substances (except Ketamine or Hydrocodone).000 but less than 2.500 units of Ketamine.500 but less than 5. At least 156 but less than 312 units of Flunitrazepam. M At least 62 but less than 156 units of Flunitrazepam. M At least 250 but less than 1. M Less than 4. *Notes to Drug Quantity Table: (A) Level 10 Level 8 Level 6 Unless otherwise specified. (16) M At least 250 G but less than 1 KG of Marihuana. M Less than 250 units of Schedule I or II Depressants.000 units of Schedule III Hydrocodone. M At least 1. (15) M At least 1 KG but less than 2.000 units of Schedule I or II Depressants. M At least 1.500 units of Schedule III substances (except Ketamine or Hydrocodone). 40. 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.500 but less than 5. If a mixture or substance contains more than one controlled substance. At least 2. At least 2. At least 2.

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

determine the base offense level using the marihuana equivalency of the most closely related controlled substance referenced in this guideline. 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. see §§2D1. 2009 "Mixture or substance" as used in this guideline has the same meaning as in 21 U. 4. The enhancement also applies to offenses that are referenced to §2D1.1 applies. beeswax in a cocaine/beeswax statue. 2D1.2(a)(1) and (2). is treated as simple possession. which are defined in 21 U. to the extent practicable. For purposes of this guideline "analogue" has the meaning given the term "controlled substance analogue" in 21 U. Mixture or substance does not include materials that must be separated from the controlled substance before the controlled substance can be used. 2. – 150 – . the court may use any reasonable method to approximate the weight of the mixture or substance to be counted.S. Examples of such materials include the fiberglass in a cocaine/fiberglass bonded suitcase. except as otherwise provided.1(b)(1). Similarly. Any reference to cocaine includes ecgonine and coca leaves.—Any reference to a particular controlled substance in these guidelines includes all salts.11(c)(1). for example. Definitions of "firearm" and "dangerous weapon" are found in the Commentary to §1B1.§2D1.1. 2D1.C.7(b)(1). Distribution of "a small amount of marihuana for no remuneration". and.C.1 Application Notes: 1.12(c)(1). 21 U. and waste water from an illicit laboratory used to manufacture a controlled substance.S. arrested at his residence. The statute and guideline also apply to "counterfeit" substances. In determining the appropriate sentence. the court shall. In determining the most closely related controlled substance.C. isomers. GUIDELINES MANUAL November 1. to which §2D2. § 841(b)(4). If such material cannot readily be separated from the mixture or substance that appropriately is counted in the Drug Quantity Table.1 (Application Instructions). all salts of isomers. an approximation of the weight of the marihuana without such excess moisture content is to be used. 2D1.S. unless it is clearly improbable that the weapon was connected with the offense. except as expressly provided. 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.6.S. 2D1. had an unloaded hunting rifle in the closet. The adjustment should be applied if the weapon was present. with a bale of rain-soaked marihuana or freshly harvested marihuana that had not been dried). the enhancement would not be applied if the defendant. 2D1. § 802(32).8. For example.C. and 2D2. The enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. consider the following: 3. In the case of a controlled substance that is not specifically referenced in this guideline. 2D1. 5. any analogue of that controlled substance. § 841. An upward departure nonetheless may be warranted when the mixture or substance counted in the Drug Quantity Table is combined with other. in the case of marihuana having a moisture content that renders the marihuana unsuitable for consumption without drying (this might occur. Analogues and Controlled Substances Not Referenced in this Guideline.5(a)(1). non-countable material in an unusually sophisticated manner in order to avoid detection.

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

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

which has an offense level of 18 in the Drug Quantity Table.99 (56 + 4.5 kg or more. 2009 GUIDELINES MANUAL §2D1.999) kilograms.1 (ii) The defendant is convicted of selling 500 grams of marihuana (Level 8) and five kilograms of diazepam (Level 8).—The 2-level reduction provided in subdivision (i) shall not apply in a case in which: (I) the offense involved 4.99 kilograms of marihuana set forth as the maximum combined equivalent weight for Schedule III.25 kilograms). The combined equivalent weight. or less than 250 mg. The diazepam. (ii) (II) – 153 – . (iii) (iv) (D) Determining Base Offense Level in Offenses Involving Cocaine Base and Other Controlled Substances. of cocaine base. The cocaine is equivalent to 16 kilograms of marihuana.. IV. the combined equivalent weight would have been 61.000 units of a Schedule III substance. a Schedule IV drug. The marihuana equivalency for the Schedule III substance is 56 kilograms of marihuana (below the cap of 59. Exceptions to 2-level Reduction. The total. 100. determine the combined offense level as provided by subdivision (B) of this note. The defendant is convicted of selling 80 grams of cocaine (Level 16) and five kilograms of marihuana (Level 14). and 200. Without the cap.25 kilograms).125 kilograms of marihuana. The marihuana equivalency for the Schedule IV substance is subject to a cap of 4.—Except as provided in subdivision (ii).99 kilograms of marihuana set forth as the maximum equivalent weight for Schedule IV substances (without the cap it would have been 6.000 units of a Schedule IV substance. the controlled substance(s) other than cocaine base).99 kilograms of marihuana set forth as the maximum equivalent weight for Schedule III substances). has an offense level of 10 in the Drug Quantity Table. if the offense involves cocaine base ("crack") and one or more other controlled substance. is subject to the cap of 59. is equivalent to 625 grams of marihuana. The total is therefore equivalent to 21 kilograms of marihuana. and reduce the combined offense level by 2 levels. and V substances.000 units of a Schedule V substance. 1. 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.— (i) In General.99 + . 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.November 1.e. The defendant is convicted of selling 56. determined by adding together the above amounts.

the 6.000 kg of marihuana corresponds to an offense level 34 under the Drug Quantity Table. 20 gm of cocaine base converts to 400 kg of marihuana (20 gm x 20 kg = 400 kg). and 1.5 kg of cocaine converts to 300 kg of marihuana (1.5 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. which is reduced by two levels to level 28. 6. Under the Drug Quantity Table. the reduction does not apply and the combined offense level for the two drugs remains level 34. Under the Drug Quantity Table. 2009 The case involves 20 gm of cocaine base. For the cocaine and marihuana. their combined equivalent quantity of 310 kg of marihuana corresponds to a combined offense level of 26 under the Drug Quantity Table. Under the Drug Equivalency Tables in subdivision (E) of this note. which is reduced by two levels to 32.— Schedule I or II Opiates* 1 gm of Heroin = 1 gm of Alpha-Methylfentanyl = 1 gm of Dextromoramide = 1 gm of Dipipanone = 1 gm of 3-Methylfentanyl = 1 gm of 1-Methyl-4-phenyl-4-propionoxypiperidine/MPPP = 1 gm of 1-(2-Phenylethyl)-4-phenyl-4-acetyloxypiperidine/ PEPAP = 700 gm of marihuana 1 kg of marihuana 10 kg of marihuana 670 gm of marihuana 250 gm of marihuana 10 kg of marihuana 700 gm of marihuana – 154 – .100 kg of marihuana corresponds to a combined offense level of 34.1 (iii) Examples. 5 gm of cocaine base converts to 100 kg of marihuana (5 gm x 20 kg = 100 kg). the combined offense level for all three drug types remains level 28. Because the combined offense level for the two drug types after the 2-level reduction is less than the offense level for the heroin. For the heroin. (II) (E) Drug Equivalency Tables.— (I) GUIDELINES MANUAL November 1. 710 kg of marihuana corresponds to a combined offense level of 30.000 gm x 1 kg = 6.100 kg of marihuana.5 kg of cocaine. which.§2D1. The case involves 5 gm of cocaine base and 6 kg of heroin. when added together results in a combined equivalent quantity of 6.000 kg of marihuana (6. 1. 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.000 kg). which. and 6 kg of heroin converts to 6. and 10 kg of marihuana. Under the Drug Equivalency Tables in subdivision (E) of this note.

that the minimum offense level from the Drug Quantity Table for any of these controlled substances individually.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. 2009 GUIDELINES MANUAL §2D1.5 kg of marihuana 2. or in combination with another controlled substance.5 kg of marihuana 2.1 100 gm of marihuana 1 gm of Alphaprodine = 1 gm of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4piperidinyl] Propanamide) = 1 gm of Hydromorphone/Dihydromorphinone = 1 gm of Levorphanol = 1 gm of Meperidine/Pethidine = 1 gm of Methadone = 1 gm of 6-Monoacetylmorphine = 1 gm of Morphine = 1 gm of Oxycodone (actual) = 1 gm of Oxymorphone = 1 gm of Racemorphan = 1 gm of Codeine = 1 gm of Dextropropoxyphene/Propoxyphene-Bulk = 1 gm of Ethylmorphine = 1 gm of Hydrocodone/Dihydrocodeinone = 1 gm of Mixed Alkaloids of Opium/Papaveretum = 1 gm of Opium = 1 gm of Levo-alpha-acetylmethadol (LAAM)= 2. 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 1.01 gm of marihuana 100 gm of marihuana 100 gm of marihuana 80 gm of marihuana – 155 – . is level 12.

1 1 gm of Methcathinone = GUIDELINES MANUAL November 1.5 kg of marihuana 1. 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. or in combination with another controlled substance.1 gm of marihuana 0. Schedule I Marihuana 1 gm of Marihuana/Cannabis. powdered. is level 12.4-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. etc. Organic = 1 gm of Tetrahydrocannabinol. that the minimum offense level from the Drug Quantity Table for any of these controlled substances individually. Synthetic = 1 gm of marihuana 50 gm of marihuana 5 gm of marihuana 167 gm of marihuana 167 gm of marihuana – 156 – .5-Dimethoxy-4-methylamphetamine/DOM = 1 gm of 3. 2009 380 gm of marihuana 40 gm of marihuana 1 gm of N-N-Dimethylamphetamine = *Provided. = 1 gm of Hashish Oil = 1 gm of Cannabis Resin or Hashish = 1 gm of Tetrahydrocannabinol. PCP.5 gm of marihuana 0. that the minimum offense level from the Drug Quantity Table for any of these controlled substances individually. LSD. granulated.67 kg of marihuana 500 gm of marihuana 500 gm of marihuana 500 gm of marihuana 500 gm of marihuana 680 gm of marihuana 1 kg of marihuana 1 gm of marihuana 70 gm of marihuana 100 kg of marihuana 80 gm of marihuana 100 gm of marihuana 10 gm of marihuana *Provided. or in combination with another controlled substance.5-Dimethoxyamphetamine/DOB = 1 gm of 2.05 gm of marihuana 1 kg of marihuana 10 kg of marihuana 500 gm of marihuana 500 gm of marihuana 1 kg of marihuana 1 kg of marihuana 2.4-Methylenedioxymethamphetamine/MDMA = 1 gm of 3.§2D1.

and Schedule V substances shall not exceed 999. that the minimum offense level from the Drug Quantity Table for flunitrazepam individually. Schedule III substances.99 kilograms of marihuana. Schedule IV substances (except flunitrazepam). and Schedule V substances is level 8.99 kilograms of marihuana. or in combination with any Schedule I or II depressants. – 157 – .November 1.0625 gm of marihuana *****Provided. and Schedule V substances shall not exceed 59. Schedule IV substances. Schedule I or II Depressants (except gamma-hydroxybutyric acid) 1 unit of a Schedule I or II Depressant (except gamma-hydroxybutyric acid) = 1 gm of marihuana Gamma-hydroxybutyric Acid 1 ml of gamma-hydroxybutyric acid = 8. that the combined equivalent weight of all Schedule III substances (except ketamine). 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 III Hydrocodone**** 1 unit of Schedule III hydrocodone = 1 gm of marihuana ****Provided. that the combined equivalent weight of all Schedule III substances (except ketamine and hydrocodone).1 Flunitrazepam ** 1 unit of Flunitrazepam = 16 gm of marihuana **Provided. 2009 GUIDELINES MANUAL §2D1.8 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 IV (except flunitrazepam) and V substances shall not exceed 4.99 kilograms of marihuana. Schedule IV substances (except flunitrazepam).

g. that the combined equivalent weight of Schedule V substances shall not exceed 999 grams of marihuana. use the weight of the ephedrine.785 liters 1 qt = 0. 100 doses of Mescaline at 500 mg per dose = 50 gms of mescaline). that in a case involving ephedrine. Date Rape Drugs (except flunitrazipam. pills.000 gm 1 gm = 1. pill. GHB. pills. prepared from information provided by the Drug Enforcement Administration.1 GUIDELINES MANUAL November 1.946 liters 1 gm = 1 ml (liquid) 1 liter = 1. or capsules but not the weight of the controlled substance is known. pseudoephedrine. or ketamine) 1 ml of 1.6 gm 1 lb = 0.8 mg. displays the typical weight per dose. If the number of doses. in calculating the base offense level.000 mg 1 grain = 64.00625 gm of marihuana ******Provided. Do not use this table if any more reliable estimate of the total weight is available from case-specific information.8 gm marihuana 8..4-butanediol = 1 ml of gamma butyrolactone = 8. or capsule for certain controlled substances.§2D1. multiply the number of doses. pseudoephedrine. the following table is provided: MEASUREMENT CONVERSION TABLE 1 oz = 28.000 ml 1 kg = 1. or capsules by the typical weight per dose in the table below to estimate the total weight of the controlled substance (e. or phenylpropanolamine contained in the tablets.35 gm 1 lb = 453. – 158 – .4536 kg 1 gal = 3. 11. not the weight of the entire tablets.8 gm marihuana To facilitate conversions to drug equivalencies. 2009 Schedule V Substances****** 1 unit of a Schedule V Substance = 0. The Typical Weight Per Unit Table. 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. or phenylpropanolamine tablets.

sale of five grams of heroin and an attempt to sell an additional ten grams of heroin). See §1B1. the court may consider. 2009 GUIDELINES MANUAL §2D1. 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. In making this determination. similar transactions in controlled substances by the defendant. OR CAPSULE) TABLE Hallucinogens MDA MDMA Mescaline PCP* Peyote (dry) Peyote (wet) Psilocin* Psilocybe mushrooms (dry) Psilocybe mushrooms (wet) Psilocybin* 2. PILL.5-Dimethoxy-4-methylamphetamine (STP. DOM)* 250 mg 250 mg 500 mg 5 mg 12 gm 120 gm 10 mg 5 gm 50 gm 10 mg 3 mg Marihuana 1 marihuana cigarette Stimulants Amphetamine* Methamphetamine* Phenmetrazine (Preludin)* 10 mg 5 mg 75 mg 0. financial or other records. 12.. the total quantity involved shall be aggregated to determine the scale of the offense. the court shall approximate the quantity of the controlled substance. the price generally obtained for the controlled substance.3(a)(2) (Relevant Conduct).1 TYPICAL WEIGHT PER UNIT (DOSE. and the size or capability of any laboratory involved.November 1.5 gm *For controlled substances marked with an asterisk. Therefore. If the offense involved both a substantive drug offense and an attempt or conspiracy (e. Types and quantities of drugs not specified in the count of conviction may be considered in determining the offense level. Where there is no drug seizure or the amount seized does not reflect the scale of the offense. for example. the weight per unit shown is the weight of the actual controlled substance.g. use of this table provides a very conservative estimate of the total weight. In an offense involving an agreement to sell a controlled substance. and not generally the weight of the mixture or substance containing the controlled substance. For – 159 – .

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

S.November 1. and the likelihood of release into the environment of hazardous or toxic substances. See 21 U. In such cases. or 49 U. emission. and Liability Act. and the extent of the manufacturing operation. treatment. 42 U. respectively. whether the offense created a substantial risk of harm to human life or the environment. and the manner in which the chemicals or substances were stored. § 6928(d).3 (Conditions of Probation) and 5D1.—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.—In determining. Additionally. the Comprehensive Environmental Response. Substantial Risk of Harm Associated with the Manufacture of Amphetamine and Methamphetamine. If the offense involved importation of amphetamine or methamphetamine. 20.3 (Relevant Conduct) involved any discharge.1 18.C..S. The location of the laboratory (e. an upward departure may be warranted.—Subsection (b)(10)(A) applies if the conduct for which the defendant is accountable under §1B1.— (A) Factors to Consider. The manner in which hazardous or toxic substances were disposed.g. (ii) (iii) (iv) (B) Definitions. 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). the Federal Water Pollution Control Act. The duration of the offense. Compensation. and the number of human lives placed at substantial risk of harm. transportation. in determining the amount of restitution under §5E1. do not apply subsection (b)(4). In some cases. 33 U. whether the laboratory is located in a residential neighborhood or a remote area). 42 U. § 9603(b). § 5124 (relating to violations of laws and regulations enforced by the Department of Transportation with respect to the transportation of hazardous material). or disposal violation covered by the Resource Conservation and Recovery Act. – 161 – . the court shall include consideration of the following factors: (i) The quantity of any chemicals or hazardous or toxic substances found at the laboratory.C. § 853(q) (mandatory restitution for cleanup costs relating to the manufacture of amphetamine and methamphetamine).3 (Conditions of Supervised Release). mental retardation.C.C.S.1 (Restitution) and in fashioning appropriate conditions of probation and supervision under §§5B1. 19. Hazardous or Toxic Substances. release. for purposes of subsection (b)(10)(C)(ii) or (D).S. 2009 GUIDELINES MANUAL §2D1. § 1319(c).S. 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. or senility.C. storage. and an adjustment from subsection (b)(2) applies.

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

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

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

amended effective January 15. 1990 (see Appendix C. amendment 447).S. 2009 GUIDELINES MANUAL §2D1. § 845a). 1987. was deleted by consolidation with the guidelines applicable to the underlying substantive offenses effective November 1. See §1B1. the total amount of heroin involved in the offense). [Deleted] Historical Note: Section 2D1. sold 5 grams of heroin near a protected location and 10 grams of heroin elsewhere.C. 1988 (see Appendix C. November 1. if the defendant. November 1.November 1. §2D1.2(a). § 845b). 861 (formerly 21 U. amendment 319). November 1. amendment 135). Application Note: 1. §2D1. 2000 (see Appendix C. effective November 1. to Pregnant Women. amendments 136-138). 1987. November 1. 1992 (see Appendix C.4 (Attempts and Conspiracies).C. effective November 1.C. 1991 (see Appendix C.3 (Distributing Controlled Substances to Individuals Younger than Twenty-One Years. the offense level from subsection (a)(2) would be level 17 (1 plus the offense level for the sale of 15 grams of heroin. the offense level from subsection (a)(1) would be level 16 (2 plus the offense level for the sale of 5 grams of heroin. Historical Note: Effective November 1.S.5 Commentary Statutory Provisions: 21 U.3. 1989 (see Appendix C. Attempt or Conspiracy (a) Base Offense Level (Apply the greater): – 165 – . amendment 23). [Deleted] Historical Note: Section 2D1. November 1. 1988 (see Appendix C. amended effective November 1.2 effective November 1. or Within 1000 Feet of a School or College). the amount sold near the protected location). subsections (a)(1) and (a)(2) may result in different offense levels. amendment 22). 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. § 845). Continuing Criminal Enterprise. 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. §2D1. 1989 (see Appendix C. was deleted by consolidation with §2D1. amendment 421). Amended effective January 15.S.C. as part of the same course of conduct or common scheme or plan. amendment 447). Background: This section implements the direction to the Commission in Section 6454 of the AntiDrug Abuse Act of 1988. 1989 (see Appendix C.5. amendment 591). amendment 135). 860 (formerly 21 U.4. 1992 (see Appendix C. §§ 859 (formerly 21 U.S. 1987. For example.

1989 (see Appendix C.C. amendment 66). Part B is not authorized because the offense level of this guideline already reflects an adjustment for role in the offense. Commentary (2) Statutory Provision: 21 U." 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 §4A1.2(a)(1) and not part of the instant offense. 1988 (see Appendix C.1 applicable to the underlying offense. Application Notes: 1.S.5 (1) GUIDELINES MANUAL November 1. An adjustment from Chapter Three. this guideline provides a minimum base offense level of 38. – 166 – . § 848. Historical Note: Effective November 1.C. Amended effective October 15. Part B (Role in the Offense).S. 2.S. Violations of 21 U. See §5G1. an upward departure may be warranted.C. Use of Communication Facility in Committing Drug Offense. 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. November 1. If as part of the enterprise the defendant sanctioned the use of violence. If the application of the guidelines results in a sentence below the minimum sentence required by statute. the statutory minimum shall be the guideline sentence. § 848 provides a 20-year minimum mandatory penalty for the first conviction. 4. Part D (Multiple Counts). Background: Because a conviction under 21 U.C.6. Under 21 U.S. 1987. or if the number of persons managed by the defendant was extremely large. 1992 (see Appendix C.S. Title 21 U. 3. and a mandatory life sentence for principal administrators of extremely large enterprises. § 848. § 848 establishes that a defendant controlled and exercised authority over one of the most serious types of ongoing criminal activity. November 1. Do not apply any adjustment from Chapter Three. § 848 will be grouped with other drug offenses for the purpose of applying Chapter Three. or 38.1(b). amendment 447). 2009 4 plus the offense level from §2D1. §2D1. amendment 139).§2D1.C. a 30-year minimum mandatory penalty for a second conviction. Attempt or Conspiracy (a) Base Offense Level: the offense level applicable to the underlying offense.

amendment 737).1 provides a minimum offense level of 12 where the offense involves heroin (or other Schedule I or II opiates).C. amendment 505). signs. Commentary Statutory Provision: 21 U. LSD (or other Schedule I or II hallucinogens). In a case involving a large-scale dealer. Attempt or Conspiracy (a) (b) Base Offense Level: 12 Cross Reference (1) If the offense involved a controlled substance. 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). and sound. pictures. 1990 (see Appendix C. or Trafficking) or §2D2.C. Application Note: 1. PCP. 2009 (see Appendix C. 2009 GUIDELINES MANUAL §2D1. Where the offense level for the underlying offense is to be determined by reference to §2D1. apply §2D1.C. signals. or manufacturer. methamphetamine. and a minimum offense level of 6 otherwise (§2D1. 1994 (see Appendix C.g. cocaine base.7. Amended effective November 1.1 (Unlawful Possession). November 1. wire. amendment 447). Conversely. distributor. telephone. Importing. Exporting. November 1.S. a minimum offense level of 8 where the offense involves flunitrazepam (§2D1. A communication facility includes any public or private instrument used in the transmission of writing. Background: This section covers the use of a communication facility in committing a drug offense. or fentanyl analogue (§2D1. 1992 (see Appendix C.. 1987.1 (Unlawful Manufacturing.1(c)(17)). November 1. Unlawful Sale or Transportation of Drug Paraphernalia. § 863 (formerly 21 U. Application Note: 1.November 1. Note that the Drug Quantity Table in §2D1. e. radio. amendment 320).1(c)(14)). cocaine (or other Schedule I or II stimulants). see Application Note 12 of the Commentary to §2D1. § 843(b).S. fentanyl. §2D1. an upward departure may be warranted. where the offense was not committed for pecuniary – 167 – .S.7 Commentary Statutory Provision: 21 U.1(c)(16)).1. if the resulting offense level is greater than that determined above. § 857). as appropriate.1 for guidance in determining the scale of the offense. Historical Note: Effective November 1.

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

Attempt or Conspiracy (a) Base Offense Level: 23 Commentary Statutory Provision: 21 U. Placing or Maintaining Dangerous Devices on Federal Property to Protect the Unlawful Production of Controlled Substances. November 1. Amended effective November 1. or controlling any building. placing. room.1. or maintaining a "booby-trap" on federal property where a controlled substance is being manufactured or distributed. 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. If the resulting offense level is less than level 30. amendment 447). 1992 (see Appendix C. increase to level 27.10 Background: This section covers the offense of knowingly opening. (B) – 169 – . or enclosure for the purpose of manufacturing. Amended effective November 1. a "crack house"). §2D1. 2002 (see Appendix C. November 1. §2D1.S. 1991 (see Appendix C. or using a controlled substance contrary to law (e. distributing.November 1.g. 1992 (see Appendix C. increase by 3 levels. and (ii) created a substantial risk of harm to the life of a minor or an incompetent. Historical Note: Effective November 1. amendments 447 and 448). storing. If the resulting offense level is less than level 27. Historical Note: Effective November 1. amendment 640). managing. maintaining.. amendment 394). If the offense (i) involved the manufacture of amphetamine or methamphetamine. or 20. increase by 6 levels. 1987. Specific Offense Characteristic (1) (Apply the greater): (A) If the offense involved the manufacture of amphetamine or methamphetamine.9. November 1. or causing to be placed. 1987. 2009 GUIDELINES MANUAL §2D1. 2002 (see Appendix C.C. Background: This section covers the offense of assembling.10. § 841(d)(1). amendment 646). increase to level 30. Endangering Human Life While Illegally Manufacturing a Controlled Substance.

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

unless the defendant knew or believed that the listed chemical was to be used to manufacture a controlled substance unlawfully. apply §2D1. or attempting to manufacture a controlled substance unlawfully. If the defendant is convicted of violating 21 U. (2) (3) (4) (5) (c) Cross Reference (1) If the offense involved unlawfully manufacturing a controlled substance.S. (d)(3). decrease by 2 levels. decrease by 4 levels.11 level under subsection (d) is (i) level 32.November 1. increase by 2 levels. decrease by 3 levels.3 (Relevant Conduct). or disposal of a hazardous waste.C. If the offense involved (A) an unlawful discharge. If the defendant is convicted under 21 U. increase by 2 levels. or (d)(4). Trafficking) if the resulting offense level is greater than that determined above. Exporting.C. Importing. or (iii) level 38. (ii) level 34 or level 36. (b) Specific Offense Characteristics (1) If a dangerous weapon (including a firearm) was possessed. 2009 GUIDELINES MANUAL §2D1. or release into the environment of a hazardous or toxic substance. or (B) the unlawful transportation. § 865.1 (Unlawful Manufacturing. – 171 – . or § 960(d)(2). distributed a listed chemical through mass-marketing by means of an interactive computer service. treatment. § 841(c)(2) or (f)(1). decrease by 3 levels. If the defendant. emission. or a person for whose conduct the defendant is accountable under §1B1. increase by 2 levels. increase by 2 levels.S. storage.

At least 10 G but less than 40 G of Ephedrine. 2009 (d) EPHEDRINE. At least 100 G but less than 300 G of Ephedrine. At least 70 G but less than 100 G of Phenylpropanolamine. At least 70 G but less than 100 G of Ephedrine. At least 8 G but less than 10 G of Pseudoephedrine. 3 KG or More of Pseudoephedrine. At least 100 G but less than 300 G of Phenylpropanolamine. 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 6 G but less than 8 G of Ephedrine. PSEUDOEPHEDRINE. At least 70 G but less than 100 G of Pseuodoephedrine. At least 1 KG but less than 3 KG of Ephedrine. At least 40 G but less than 70 G of Ephedrine.11 GUIDELINES MANUAL November 1. At least 6 G but less than 8 G of Phenylpropanolamine. At least 300 G but less than 1 KG of Ephedrine. At least 300 G but less than 1 KG of Pseudoephedrine. At least 10 G but less than 40 G of Pseudoephedrine. At least 10 G but less than 40 G of Phenylpropanolamine. At least 1 KG but less than 3 KG of Pseudoephedrine. 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 Pseudoephedrine. At least 6 G but less than 8 G of Pseudoephedrine. At least 8 G but less than 10 G of Ephedrine. At least 1 KG but less than 3 KG of Phenylpropanolamine. At least 100 G but less than 300 G of Pseudoephedrine.§2D1. At least 300 G but less than 1 KG of Phenylpropanolamine. At least 8 G but less than 10 G of Phenylpropanolamine. At least 40 G but less than 70 G of Phenylpropanolamine.

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

2 G or more of Iodine. At least 6 KG but less than 20 KG of Phenylacetic Acid. At least 96 KG but less than 320 KG of Safrole. (2) List I Chemicals Level 28 At least 267 G but less than 890 G of Benzaldehyde. At least 40 G but less than 120 G of Ergotamine. At least 150 KG but less than 500 KG of N-Methylephedrine. At least 340. At least 480 G but less than 1. At least 50 KG but less than 150 KG of N-Methylpseudoephedrine. At least 2 KG but less than 6 KG of Ethylamine. At least 3 KG but less than 10 KG of Piperidine. 2009 1135. White Phosphorus. 714 G or more of Red Phosphorus.5 G but less than 187.5 L of Gamma-butyrolactone. At least 214 G but less than 714 G of Red Phosphorus.5 L or more of Gamma-butyrolactone. At least 50 KG but less than 150 KG of N-Methylephedrine.5 G but less than 625 G of Nitroethane. 1075 KG or more of Ethyl Ether.5 G of Nitroethane. 20 KG or more of Benzyl Chloride. At least 20 G but less than 60 G of Methylamine.11 GUIDELINES MANUAL November 1. At least 96 KG but less than 320 KG of Piperonal. At least 187. At least 150 KG but less than 500 KG of N-Methylpseudoephedrine. 10 KG or more of Potassium Permanganate. 1200 KG or more of Methyl Ethyl Ketone. At least 62. White Phosphorus. At least 2 KG but less than 6 KG of Benzyl Cyanide. 1175 KG or more of Acetone.2 KG of Hydriodic Acid. (3) List I Chemicals At least 89 G but less than 267 G of Benzaldehyde. At least 32 KG but less than 96 KG of Isosafrole. At least 120 KG but less than 400 KG of 3.6 KG of Propionic Anhydride. At least 20 G but less than 60 G of Ergonovine. At least 120 G but less than 400 G of Ergotamine. or Hypophosphorous Acid.§2D1. List II Chemicals 11 KG or more of Acetic Anhydride. or Hypophosphorous Acid. At least 660 G but less than 2. At least 6 KG but less than 20 KG of Ethylamine. At least 3 KG but less than 10 KG of Norpseudoephedrine. 4-Methylenedioxyphenyl-2-propanone. At least 220 G but less than 660 G of Hydriodic Acid. At least 60 G but less than 200 G of Methylamine. At least 96 KG but less than 320 KG of Isosafrole.7 L but less than 1135. 1300 KG or more of Toluene. At least 60 G but less than 200 G of Ergonovine. Level 26 – 174 – . At least 6 KG but less than 20 KG of Benzyl Cyanide. 376.

White Phosphorus. At least 71 G but less than 214 G of Red Phosphorus.5 KG but less than 1175 KG of Acetone. At least 35 KG but less than 50 KG of N-Methylpseudoephedrine. At least 40 KG but less than 120 KG of 3. At least 322. At least 22. At least 1.4 KG but less than 32 KG of Isosafrole. or Hypophosphorous Acid.4 KG but less than 2 KG of Ethylamine. At least 14 G but less than 20 G of Ergonovine. At least 1. At least 32 KG but less than 96 KG of Piperonal. At least 43. At least 700 G but less than 1 KG of Piperidine.3 KG but less than 11 KG of Acetic Anhydride. At least 352. White Phosphorus. At least 35 KG but less than 50 KG of N-Methylephedrine. At least 50 G but less than 71 G of Red Phosphorus.4 G but less than 376.1 KG but less than 3. At least 160 G but less than 480 G of Propionic Anhydride. At least 360 KG but less than 1200 KG of Methyl Ethyl Ketone.5 L but less than 113.5 KG of Acetone.3 G but less than 89 G of Benzaldehyde. At least 14 G but less than 20 G of Methylamine. At least 1.11 At least 1 KG but less than 3 KG of Norpseudoephedrine. At least 28 KG but less than 40 KG of 3.5 KG but less than 1075 KG of Ethyl Ether. At least 28 G but less than 40 G of Ergotamine.4 KG but less than 32 KG of Safrole. (4) List I Chemicals Level 24 At least 62.6 L but less than 340. or Hypophosphorous Acid. At least 79. At least 2 KG but less than 6 KG of Phenylacetic Acid.4 KG but less than 2 KG of Phenylacetic Acid.3 KG of Acetic Anhydride. At least 390 KG but less than 1300 KG of Toluene.2 G of Iodine. List II Chemicals At least 1. At least 154 G but less than 220 G of Hydriodic Acid. – 175 – . At least 3 KG but less than 10 KG of Potassium Permanganate. At least 22. At least 32 KG but less than 96 KG of Safrole. At least 6 KG but less than 20 KG of Benzyl Chloride. 2009 GUIDELINES MANUAL §2D1.5 KG but less than 352. At least 113. 4-Methylenedioxyphenyl-2-propanone.4 KG but less than 32 KG of Piperonal.November 1.4 KG but less than 2 KG of Benzyl Cyanide.6 L of Gamma-butyrolactone. At least 700 G but less than 1 KG of Norpseudoephedrine. 4-Methylenedioxyphenyl-2-propanone.7 L of Gamma-butyrolactone. At least 2 KG but less than 6 KG of Benzyl Chloride. At least 1 KG but less than 3 KG of Piperidine.5 G of Nitroethane. At least 22. At least 125.8 G but less than 62. At least 117. At least 112 G but less than 160 G of Propionic Anhydride. List II Chemicals At least 3.

At least 200 G but less than 800 G of Benzyl Cyanide. 4-Methylenedioxyphenyl-2-propanone. At least 3. At least 20 KG but less than 35 KG of N-Methylpseudoephedrine.11 GUIDELINES MANUAL November 1. At least 8 G but less than 14 G of Methylamine. Level 20 – 176 – . At least 64 G but less than 112 G of Propionic Anhydride.6 G of Benzaldehyde. At least 50. At least 25 G but less than 43.5 KG of Acetone.4 KG of Benzyl Cyanide.§2D1.8 G of Nitroethane.4 KG of Phenylacetic Acid. At least 12.2 G but less than 87. At least 800 G but less than 1.25 KG but less than 117. 2009 At least 107. At least 16 G but less than 28 G of Ergotamine.5 KG but less than 322. At least 700 G but less than 1 KG of Potassium Permanganate. At least 400 G but less than 700 G of Norpseudoephedrine. At least 800 G but less than 1.4 KG of Safrole. At least 120 KG but less than 360 KG of Methyl Ethyl Ketone. At least 800 G but less than 1. At least 4 G but less than 16 G of Ergotamine. At least 8 G but less than 14 G of Ergonovine. At least 87.2 KG but less than 12.4 KG of Ethylamine.8 KG of Isosafrole.25 KG but less than 107. At least 12.5 KG of Ethyl Ether. White Phosphorus. At least 400 G but less than 700 G of Piperidine. At least 91 KG but less than 130 KG of Toluene.4 KG but less than 2 KG of Benzyl Chloride.3 G of Benzaldehyde. At least 45.5 KG of Ethyl Ether. At least 12. At least 82.8 KG but less than 22. (6) List I Chemicals At least 8. At least 88 G but less than 154 G of Hydriodic Acid.8 KG but less than 22. (5) List I Chemicals Level 22 At least 35. At least 16 KG but less than 28 KG of 3.4 KG of Piperonal.4 L but less than 79. At least 200 G but less than 800 G of Ethylamine. At least 2 G but less than 8 G of Ergonovine.8 G of Iodine.8 KG but less than 22. At least 20 KG but less than 35 KG of N-Methylephedrine. or Hypophosphorous Acid.9 G but less than 35.6 G but less than 62. List II Chemicals At least 726 G but less than 1. At least 75.8 G but less than 125. At least 1. At least 84 KG but less than 120 KG of Methyl Ethyl Ketone.4 G of Iodine. At least 29 G but less than 50 G of Red Phosphorus.4 KG of Isosafrole. At least 2 G but less than 8 G of Methylamine. At least 22 G but less than 88 G of Hydriodic Acid.5 L of Gamma-butyrolactone. At least 130 KG but less than 390 KG of Toluene. At least 1 KG but less than 3 KG of Potassium Permanganate.1 KG of Acetic Anhydride.

At least 52 KG but less than 91 KG of Toluene.11 At least 5 KG but less than 20 KG of N-Methylephedrine. At least 1.4 L but less than 45. 4-Methylenedioxyphenyl-2-propanone.25 KG of Acetone.8 G but less than 16 G of Propionic Anhydride. At least 800 G but less than 1.25 KG of Ethyl Ether. At least 6. At least 80 G but less than 100 G of Norpseudoephedrine.2 G but less than 4 G of Ergotamine.4 L of Gamma-butyrolactone. At least 7 G but less than 29 G of Red Phosphorus.56 KG but less than 3.9 G of Benzaldehyde. At least 43 KG but less than 75.4 L of Gamma-butyrolactone. At least 160 G but less than 200 G of Phenylacetic Acid. At least 1. White Phosphorus. At least 12. At least 4 KG but less than 5 KG of N-Methylpseudoephedrine. At least 400 G but less than 700 G of Potassium Permanganate.6 G but less than 22 G of Hydriodic Acid.8 KG of Safrole. or Hypophosphorous Acid. or Hypophosphorous Acid. – 177 – . At least 48 KG but less than 84 KG of Methyl Ethyl Ketone.5 G but less than 50. At least 5 G but less than 6. At least 160 G but less than 200 G of Benzyl Cyanide. At least 80 G but less than 100 G of Piperidine. White Phosphorus.8 KG of Piperonal. At least 2.November 1.2 KG but less than 12. At least 3. At least 3.2 G of Iodine. 2009 GUIDELINES MANUAL §2D1. At least 47 KG but less than 82. (7) List I Chemicals Level 18 At least 7. At least 6 G but less than 7 G of Red Phosphorus.56 KG but less than 3. At least 9.2 KG of Safrole.3 G but less than 25 G of Nitroethane. List II Chemicals At least 440 G but less than 726 G of Acetic Anhydride. At least 16 G but less than 64 G of Propionic Anhydride. At least 2. At least 100 G but less than 400 of Norpseudoephedrine.1 G but less than 8. At least 12.3 G of Nitroethane. At least 2.2 KG of Piperonal. At least 5 KG but less than 20 KG of N-Methylpseudoephedrine.2 KG but less than 12. At least 11. 4-Methylenedioxyphenyl-2-propanone. At least 4 KG but less than 16 KG of 3.1 L but less than 11. At least 100 G but less than 400 G of Piperidine. At least 200 G but less than 800 G of Phenylacetic Acid.2 KG but less than 4 KG of 3. At least 160 G but less than 200 G of Ethylamine.4 KG of Benzyl Chloride.6 G but less than 2 G of Ergonovine.56 KG but less than 3. At least 3. At least 3. At least 4 KG but less than 5 KG of N-Methylephedrine. At least 17.6 G but less than 2 G of Methylamine.2 KG of Isosafrole.

List II Chemicals At least 88 G but less than 110 G of Acetic Anhydride.5 G of Iodine. At least 11. At least 80 G but less than 100 G of Potassium Permanganate. At least 12 KG but less than 48 KG of Methyl Ethyl Ketone.1 G of Benzaldehyde. At least 3.8 KG or more of N-Acetylanthranilic Acid. At least 7.6 KG or more of Anthranilic Acid. At least 6. At least 1. At least 60 G but less than 80 G of Norpseudoephedrine.4 G but less than 3.56 KG of Piperonal.4 KG but less than 11. At least 2.75 KG but less than 47 KG of Acetone. At least 1.6 KG but less than 10.6 G but less than 5. At least 4 G but less than 6 G of Red Phosphorus.6 KG but less than 12 KG of Methyl Ethyl Ketone. At least 100 G but less than 400 G of Potassium Permanganate.6 G of Hydriodic Acid. 2009 List II Chemicals At least 110 G but less than 440 G of Acetic Anhydride. At least 3 KG but less than 4 KG of N-Methylephedrine.§2D1. (8) List I Chemicals Level 16 3.4 KG but less than 13 KG of Toluene. At least 8. Level 14 – 178 – . (9) List I Chemicals At least 2.56 KG of Safrole.92 KG but less than 2. At least 120 G but less than 160 G of Phenylacetic Acid.4 KG but less than 3.6 G but less than 12. At least 2. At least 9. At least 13 KG but less than 52 KG of Toluene. At least 10. At least 3 KG but less than 4 KG of N-Methylpseudoephedrine. At least 10. At least 5. At least 10 G but less than 12.5 G but less than 10 G of Iodine.2 G but less than 1.92 KG but less than 2.1 L of Gamma-butyrolactone.56 KG of Isosafrole.6 G of Methylamine. 4.8 L but less than 9.11 GUIDELINES MANUAL November 1. At least 9. At least 1. At least 60 G but less than 80 G of Piperidine.2 G but less than 1. At least 120 G but less than 160 G of Ethylamine.75 KG but less than 43 KG of Ethyl Ether.75 KG of Ethyl Ether. or Hypophosphorous Acid. At least 3.3 G of Benzaldehyde.2 KG of 3.6 KG of Anthranilic Acid. At least 9. At least 1.8 G but less than 5 G of Nitroethane.75 KG of Acetone.7 KG but less than 3. At least 120 G but less than 160 G of Benzyl Cyanide. At least 1.92 KG but less than 2.2 G but less than 17. At least 160 G but less than 200 G of Benzyl Chloride.8 G of Propionic Anhydride.2 G of Ergotamine. White Phosphorus.3 G but less than 7. At least 13. 4-Methylenedioxyphenyl-2-propanone. At least 200 G but less than 800 G of Benzyl Chloride.6 G of Ergonovine.

44 KG but less than 1. Less than 800 MG of Ergonovine.6 G of Ergotamine. (10) List I Chemicals Less than 2. Less than 80 G of Phenylacetic Acid. 2009 GUIDELINES MANUAL §2D1. or Hypophosphorous Acid. At least 60 G but less than 80 G of Potassium Permanganate. At least 80 G but less than 120 G of Phenylacetic Acid.2 G of Methylamine. Less than 80 G of Ethylamine. At least 1. Less than 80 G of Benzyl Cyanide. At least 1.6 KG but less than 4.2 G of Hydriodic Acid.8 G of Hydriodic Acid. At least 2.11 At least 80 G but less than 120 G of Benzyl Cyanide. At least 800 MG but less than 1. At least 120 G but less than 160 G of Benzyl Chloride.5 G of Iodine.2 G but less than 9.44 KG of Isosafrole. Less than 8.92 KG of Piperonal.45 KG but less than 8. Less than 1. At least 6. At least 80 G but less than 120 G of Ethylamine.7 KG of Anthranilic Acid.6 KG of N-Acetylanthranilic Acid.92 KG of Safrole. At least 3 G but less than 4 G of Red Phosphorus. Less than 40 G of Norpseudoephedrine. At least 40 G but less than 60 G of Norpseudoephedrine.2 KG but less than 9.5 G of Nitroethane. Level 12 – 179 – .25 KG of N-Methylephedrine.6 G but less than 2.92 KG of Isosafrole.4 KG of Acetone.25 KG of N-Methylpseudoephedrine.4 G of Ergotamine. At least 1. At least 40 G but less than 60 G of Piperidine.4 KG of Toluene.5 G but less than 3. Less than 1. Less than 2. At least 2. At least 2. Less than 3. List II Chemicals At least 66 G but less than 88 G of Acetic Anhydride. Less than 2.6 KG of Methyl Ethyl Ketone.44 KG but less than 1.8 KG of N-Acetylanthranilic Acid. At least 4. 4-Methylenedioxyphenyl-2-propanone.44 KG but less than 1.November 1. At least 5 G but less than 7. At least 1.05 KG but less than 9.25 KG but less than 3 KG of N-Methylephedrine. At least 7. At least 1. White Phosphorus.4 KG of 3.8 KG but less than 2. At least 7. At least 3.6 KG of Ethyl Ether.6 G of Propionic Anhydride.2 G of Ergonovine.6 G of Benzaldehyde.8 G but less than 13.8 L of Gamma-butyrolactone.25 KG but less than 3 KG of N-Methylpseudoephedrine.8 KG but less than 10. At least 800 MG but less than 1. Less than 3.5 L but less than 6. At least 8. At least 7. At least 7. Less than 2. Less than 800 MG of Methylamine.8 G of Nitroethane.

Less than 4." as used in subsection (c)(1).e. Application Notes: 1. or Hypophosphorous Acid.45 KG of Ethyl Ether. 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. Less than 120 G of Benzyl Chloride.C. unless it is improbable that the weapon was connected with the offense.44 KG of Safrole. 4-Methylenedioxyphenyl-2-propanone. Less than 6. 2009 Less than 40 G of Piperidine. Less than 5 G of Iodine. (3). 960(d)(1). means that the defendant. (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. "Offense involved unlawfully manufacturing a controlled substance or attempting to manufacture a controlled substance unlawfully.8 KG of Toluene. (C) In a case involving ephedrine. Less than 1. pseudoephedrine. – 180 – .5 L of Gamma-butyrolactone. use the weight of the ephedrine.05 KG of Acetone. Less than 7.2 G of Propionic Anhydride. as appropriate. White Phosphorus. Less than 7. and Phenylpropanolamine Quantity Table. to calculate the base offense level in an offense that involves two or more chemicals. Less than 1. Less than 7.11 GUIDELINES MANUAL November 1.S. in calculating the base offense level.§2D1. "Firearm" and "dangerous weapon" are defined in the Commentary to §1B1. §§ 841(c)(1). (2). List II Chemicals Less than 66 G of Acetic Anhydride. (f)(1).1 (Application Instructions).8 KG of 3. or phenylpropanolamine contained in the tablets. or phenylpropanolamine tablets. (4). pseudoephedrine. Commentary Statutory Provisions: 21 U. and (ii) determine the base offense level corresponding to the aggregate quantity. (i) aggregate the quantities of all such chemicals. Less than 7. 865. not the weight of the entire tablets. (2). or a person for whose conduct the defendant is accountable under §1B1. use the quantity of the single chemical that results in the greatest offense level. ______________ *Notes: (A) Except as provided in Note (B).44 KG of Piperonal. Less than 60 G of Potassium Permanganate. Less than 3 G of Red Phosphorus.3 (Relevant 2.. Less than 1. list I or list II) under subsection (d) or (e) of this guideline.2 KG of Methyl Ethyl Ketone. Pseudoephedrine.

Under the grouping rules of §3D1. The offense level for P2P is determined by using §2D1. list I or list II) under this guideline. Pseudoephedrine. 4. (i) aggregate the quantities of all such chemicals. Determine the offense level under each guideline separately.2(b). the quantity of both the controlled substance and listed chemical should be considered (see Application Note 12 in the Commentary to §2D1. Pseudoephedrine. and Phenylpropanolamine Quantity Table. Five kilograms of ephedrine result in a base offense level of level 38. – 181 – . the counts will be grouped together..e.—In a case involving two or more chemicals used to manufacture different controlled substances. regardless of whether the chemicals are set forth in different tables or in different categories (i. The base offense level for each chemical is calculated separately and the chemical with the higher base offense level is used. Example: The defendant was in possession of five kilograms of ephedrine and 300 grams of hydriodic acid.11 Conduct). P2P (an immediate precursor) and methylamine (a listed chemical) are used together to produce methamphetamine.— (A) Determining the Base Offense Level for Two or More Chemicals. (C) Upward Departure. (B) Determining the Base Offense Level for Offenses involving Ephedrine. or to manufacture one controlled substance by different manufacturing processes. an aggregate quantity of 130 grams of such chemicals. 300 grams of hydriodic acid result in a base offense level of level 26. Ephedrine and hydriodic acid typically are used together in the same manufacturing process to manufacture methamphetamine. The base offense level corresponding to that aggregate quantity is level 32. and a related offense involving an immediate precursor or other controlled substance covered under §2D1. For example. or Trafficking). 3. Example: The defendant was in possession of 80 grams of ephedrine and 50 grams of phenylpropanolamine.1. Exporting. if the offense involves two or more chemicals. the defendant will be convicted of an offense involving a listed chemical covered under this guideline. Importing. The offense level for methylamine is determined by using §2D1.11.1). the base offense level would be level 38. In this case.1 (Unlawfully Manufacturing. and (ii) determine the base offense level corresponding to the aggregate quantity. completed the actions sufficient to constitute the offense of unlawfully manufacturing a controlled substance or attempting to manufacture a controlled substance unlawfully.November 1. 2009 GUIDELINES MANUAL §2D1. or Phenylpropanolamine. an upward departure may be warranted if the offense level does not adequately address the seriousness of the offense.—Except as provided in subdivision (B).1 (P2P is listed in the Drug Equivalency Table under Cocaine and Other Schedule I and II Stimulants (and their immediate precursors)).—If the offense involves two or more chemicals each of which is set forth in the Ephedrine. use the quantity of the single chemical that results in the greatest offense level. In certain cases. Note that in determining the scale of the offense under §2D1. Cases Involving Multiple Chemicals.

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

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

2004 (see Appendix C. equipment. or Trafficking) if the resulting offense level is greater than that determined above. an upward departure may be warranted. Importing. amendment 667). chemicals. For example. 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). Exporting. 2001 (see Appendix C. November 1. release. transportation. 1991 (see Appendix C. for purposes of subsection (b)(3) and this note. "Interactive computer service". or the Comprehensive Environmental Response. § 230(f)(2)). 1992 (see Appendix C. Subsection (b)(2) applies if the conduct for which the defendant is accountable under §1B1. amendment 371). 42 U. amendment 447). Compensation. 33 U.3 (Conditions of Probation) and 5D1. 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. 1997 (see Appendix C. amendment 605).S. §§ 843(a)(6). In such cases.S. Commentary Statutory Provisions: 21 U. has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U. Application of Subsection (b)(3). – 184 – . the Federal Water Pollution Control Act." as used in subsection (c)(1). 9603(b). or disposal violation covered by the Resource Conservation and Recovery Act. § 6928(d). or importation of prohibited flasks. 3. Additionally. amendment 520).—For purposes of subsection (b)(3). §§ 5124.1 (Unlawful Manufacturing. (7).C. and Liability Act.S. or a person for whose conduct the defendant is accountable under §1B1. products.S. amendment 626). treatment. Amended effective November 1. 42 U.C.3 (Conditions of Supervised Release). November 1. If the offense involved the large-scale manufacture. 864.3 (Relevant Conduct). In some cases. any costs of environmental cleanup and harm to persons or property should be considered by the court in determining the amount of restitution under §5E1.1 (Restitution) and in fashioning appropriate conditions of supervision under §§5B1. an upward departure may be warranted.C. completed the actions sufficient to constitute the offense of unlawfully manufacturing a controlled substance or attempting to manufacture a controlled substance unlawfully.C.3 (Relevant Conduct) involved any discharge. amendment 558). transportation. emission. exportation. means that the defendant.§2D1. Application Notes: 1. or material. "mass-marketing by means of an interactive computer service" means the solicitation.12 GUIDELINES MANUAL November 1. of a large number of persons to induce those persons to purchase a controlled substance.C. 2. November 1. November 1. 2000 (see Appendix C. 2009 §2D1. 1995 (see Appendix C. Historical Note: Effective November 1.S. distribution. 4. storage. by means of an interactive computer service. "Offense involved unlawfully manufacturing a controlled substance or attempting to manufacture a controlled substance unlawfully. § 1319(c). November 1.

4 (Terrorism) does not apply. §§ 841(c)(3). or Trafficking (Including Possession with Intent to Commit These Offenses).5 (Interpretation of References to Other Offense Guidelines). otherwise.S. or 6.14. (a)(3)(B). or The offense level from §2D1.11" includes the base offense level and any applicable specific offense characteristic or cross reference.14 §2D1. (a)(8). see §1B1. increase by 6 levels.C. Importing. Narco-Terrorism (a) Base Offense Level: (1) The offense level from §2D1. 843(a)(4)(B). or Possessing a Listed Chemical) if the defendant knew or believed that the chemical was to be used to manufacture a controlled substance unlawfully.1(a)(3)(A). Application Note: 1. (2) (3) Commentary Statutory Provisions: 21 U.November 1.11 (Unlawfully Distributing. 1992 (see Appendix C. Attempt or Conspiracy) applicable to the underlying offense.11 (Unlawfully Distributing. 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. Amended effective November 1. §2D1. 2002 (see Appendix C. amendment 447). Structuring Chemical Transactions or Creating a Chemical Mixture to Evade Reporting or Recordkeeping Requirements. Importing. and (b)(11) shall not apply. Presenting False or Fraudulent Identification to Obtain a Listed Chemical. Exporting. (f)(1). except that §2D1. Attempt or Conspiracy (a) Base Offense Level (Apply the greatest): (1) The offense level from §2D1. Historical Note: Effective November 1. (b) Specific Offense Characteristic (1) If §3A1. – 185 – . November 1.1 (Unlawful Manufacturing. amendment 371). Exporting. "The offense level from §2D1. 2009 GUIDELINES MANUAL §2D1.13. amendment 646). Importing. 1991 (see Appendix C.

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

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

Background: This section implements the direction to the Commission in Section 6482 of the AntiDrug Abuse Act of 1988. Attempt or Conspiracy (a) Base Offense Level: 4 – 188 – .S. The offense levels assume that the offense involved the operation of a common carrier carrying a number of passengers. amendment 141). amendment 447).C. e. 1987. Regulatory Offenses Involving Registration Numbers. 843(a)(1). amendment 25). 1991 (see Appendix C. If the offense resulted in the death or serious bodily injury of a large number of persons. November 1. see Appendix A (Statutory Index). a downward departure may be warranted. an upward departure may be warranted. 1995 (see Appendix C. Historical Note: Effective November 1. Historical Note: Effective November 1.3 GUIDELINES MANUAL November 1. November 1. Offenses covered by this guideline may vary widely with regard to harm and risk of harm. (2). Amended effective November 1.g. November 1.C.1. 1992 (see Appendix C. amendment 727). amendment 421). For additional statutory provision(s). 1988 (see Appendix C. amendment 534). Regulatory Offenses Involving Controlled Substances or Listed Chemicals. Amended effective January 15. Unlawful Advertising Relating to Scheduled Substances. a bus. 2009 D (Multiple Counts) as if the defendant had been convicted of a separate count for each such victim. If no or only a few passengers were placed at risk. * * * * * 3. Attempt or Conspiracy (a) Base Offense Level: 6 Commentary Statutory Provisions: 21 U. 1987. November 1.. § 342. such that the resulting offense level under subsection (b) would not adequately reflect the seriousness of the offense.S. 2009 (see Appendix C. §2D3. 1989 (see Appendix C. Commentary Statutory Provision: 18 U. REGULATORY VIOLATIONS §2D3.2.§2D2. §§ 842(a)(1).

amendment 371). 1991 (see Appendix C. – 189 – . 2009 GUIDELINES MANUAL §2D3. 1991 (see Appendix C. amendment 447). 1993 (see Appendix C.3. 1987. Amended effective November 1. amended effective November 1.2 effective November 1. amendment 481). was deleted by consolidation with §2D3. 961. Attempt or Conspiracy). effective November 1.3 (Illegal Use of Registration Number to Distribute or Dispense a Controlled Substance to Another Registrant or Authorized Person.2 effective November 1. §2D3.5 Commentary Statutory Provisions: 21 U. [Deleted] Historical Note: Section 2D3. see Appendix A (Statutory Index).2 effective November 1. Attempt or Conspiracy). 1987. §2D3.C. was deleted by consolidation with §2D3. 1993 (see Appendix C. amendment 481). [Deleted] Historical Note: Section 2D3. amendment 447). 1992 (see Appendix C. 1987.4. amendment 421) and November 1. 1990 (see Appendix C. 954. was deleted by consolidation with §2D3. (9). amendment 481). For additional statutory provision(s). Attempt or Conspiracy). amendment 359) and November 1. amended effective November 1. [Deleted] Historical Note: Section 2D3.S. amendment 447). effective November 1. amended effective November 1. amendment 447). effective November 1.4 (Illegal Transfer or Transshipment of a Controlled Substance. November 1. 1991 (see Appendix C. (b).5.November 1. 1992 (see Appendix C. amendment 421). §§ 842(a)(2). 1993 (see Appendix C. 1992 (see Appendix C. Historical Note: Effective November 1. §2D3. amendment 481). November 1. amendment 534). 1992 (see Appendix C. 1993 (see Appendix C. November 1.5 (Violation of Recordkeeping or Reporting Requirements for Listed Chemicals and Certain Machines. 1995 (see Appendix C. (10).

Use whichever subsection results in the greater offense level. 19). 3. 1987.S. Parts A. C.1 GUIDELINES MANUAL November 1. the offense level corresponding to the most analogous federal offense is to be used.2(a)(1) and not as part of the instant offense. Application Notes: 1. Historical Note: Effective November 1. the alternative minimum base offense level is to be used. Unlawful Conduct Relating to Racketeer Influenced and Corrupt Organizations (a) Base Offense Level (Apply the greater): (1) (2) 19. 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. 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.e. If the underlying conduct violates state law. treat each underlying offense as if contained in a separate count of conviction for the purposes of subsection (a)(2). this subpart covers a wide variety of criminal conduct. Commentary Statutory Provisions: 18 U. 2009 PART E . treat as a prior sentence under §4A1. apply Chapter Three. If the offense level for the underlying racketeering activity is less than the alternative minimum level specified (i. The offense level usually will be determined by the offense level of the underlying conduct. §2E1.. RACKETEERING Introductory Commentary Because of the jurisdictional nature of the offenses included.OFFENSES INVOLVING CRIMINAL ENTERPRISES AND RACKETEERING 1. and D to both (a)(1) and (a)(2).§2E1. Where such previously imposed sentence resulted from a conviction prior to the last overt act of the instant offense.C. §§ 1962. – 190 – . 4. B. Where there is more than one underlying offense. 1963.1. or the offense level applicable to the underlying racketeering activity.

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

November 1. amendment 143). 2009 Commentary Statutory Provision: 18 U. Historical Note: Effective November 1. 1987..3 GUIDELINES MANUAL November 1. 1987. November 1.C. 1990 (see Appendix C.1 effective November 1.S. the offense level corresponding to the most analogous federal offense is to be used. amendment 449). § 1958 (formerly 18 U. The maximum term of imprisonment authorized by statute ranges from three years to life imprisonment.5 (Hobbs Act Extortion or Robbery).1. effective November 1.C. amendment 311). If the underlying conduct violates state law. § 1959 (formerly 18 U. Historical Note: Effective November 1.C.5. §2E1.2. 2B3. Background: This guideline and the statute to which it applies do not require that a murder actually have been committed. Amended effective November 1. 1989 (see Appendix C.3. Commentary Statutory Provision: 18 U. 1987.4.S.S. 1992 (see Appendix C. Application Notes: 1. – 192 – . If the underlying conduct violates state law. the offense level corresponding to the most analogous federal offense is to be used. 12). amendment 144). the alternative minimum base offense level is to be used.e. amendment 481). If the offense level for the underlying conduct is less than the alternative minimum base offense level specified (i. was deleted by consolidation with §§2B3. Application Note: 1.S. amendment 145). Background: The conduct covered under this section ranges from threats to murder. or the offense level applicable to the underlying unlawful conduct. § 1952A). amended effective November 1. Amended effective November 1. 2B3. [Deleted] Historical Note: Section 2E1.§2E1. §2E1. 1993 (see Appendix C. and 2C1. 2. § 1952B). 1989 (see Appendix C. Use of Interstate Commerce Facilities in the Commission of Murder-For-Hire (a) Base Offense Level (Apply the greater): (1) (2) 32. 1989 (see Appendix C.C.

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

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

S. §2E3. 1993 (see Appendix C. * * * * * – 195 – .S.3. otherwise.S. or 10.C. Upward Departure Provision. [Deleted] Historical Note: Section 2E3.S. §2E3. was deleted by consolidation with §2E3.C. if the offense involved an animal fighting venture. Application Notes: 1. 2008 (see Appendix C.1.2. Animal Fighting Offenses (a) Base Offense Level: (Apply the greatest) (1) 12. § 2156(g). For additional statutory provision(s). effective November 1. [Deleted] Historical Note: Section 2E3. or 6.—For purposes of this guideline: "Animal fighting venture" has the meaning given that term in 7 U.—If the offense involved extraordinary cruelty to an animal that resulted in. if the offense was (A) engaging in a gambling business. maiming or death to an animal. was deleted by consolidation with §2E3. §§ 1172-1175. § 2156. 15 U.3 (Other Gambling Offenses).S. 1511.November 1. §§ 1082. (2) (3) Commentary Statutory Provisions: 7 U. amendment 721). 18 U. amendment 481). 1306. Gambling Offenses. 1993 (see Appendix C. 1993 (see Appendix C. 2009 GUIDELINES MANUAL §2E3. a commercial gambling operation. 1987. 2.C. 1987. November 1.C.3 §2E3. 1953.1 effective November 1.C. 1301-1304. Amended effective November 1. 1955. amendment 703). (B) transmission of wagering information. Definition. amendment 481). effective November 1.2 (Transmission of Wagering Information). see Appendix A (Statutory Index). amendment 481). 1987. or to facilitate. 31 U. or (C) committed as part of. § 5363. November 1.1 effective November 1. for example. Historical Note: Effective November 1. 2007 (see Appendix C. an upward departure may be warranted.

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

– 197 – .S. If the value of the prohibited payment or the value of the improper benefit to the payer.000.1 (Theft.November 1. increase by 1 level. 29 U. the consequential damages resulting from the unlawful payment. increase by the number of levels from the table in §2B1. (2) (c) Special Instruction for Fines . Specific Offense Characteristics (1) If the defendant was a fiduciary of the benefit plan or labor organization. §2E5. or 6.S. Accepting. if a gratuity. (B) if a bribe. the value of the benefit received or to be received in return for the unlawful payment.Organizations (1) In lieu of the pecuniary loss under subsection (a)(3) of §8C2. Commentary Statutory Provisions: 18 U. whichever is greater (A) exceeded $2. or (B) exceeded $5.1 bribery due to the particular vulnerability to exploitation of the organizations covered by this subpart. or Labor Organizations (a) Base Offense Level: (1) (2) (b) 10. Application Notes: 1.000. Representatives. increase by 2 levels. § 186. Offering. and Fraud) corresponding to that amount. or Soliciting a Bribe or Gratuity Affecting the Operation of an Employee Welfare or Pension Benefit Plan.C.C. use the greatest of: (A) the value of the unlawful payment. 2009 GUIDELINES MANUAL §2E5. 1987. "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.1.000 but did not exceed $5. § 1954. Property Destruction. if a bribe. or (C) if a bribe.4 (Base Fine). Historical Note: Effective November 1. Prohibited Payments or Lending of Money by Employer or Agent to Employees.

2 (Theft or Embezzlement from Employee Pension and Welfare Benefit Plans). amendment 666). and November 1. Soliciting. including the value of the bribe or gratuity and the magnitude of the loss resulting from the transaction. amendment 28). (B) an offense involving a bribe or a gratuity. or (C) an obstruction of justice offense. November 1. 1991 (see Appendix C. Conspiracy to Defraud by Interference with Governmental Functions). If the adjustment for a fiduciary at §2E5. November 1. amendment 481). Giving. GUIDELINES MANUAL November 1. §2E5. §2E5. apply §2B1. 1987. 1993 (see Appendix C. or Receiving a Bribe. a fraud. 1989 (see Appendix C.1 (Offering. or labor organizations. Destruction and Failure to Maintain Corporate Audit Records (a) Base Offense Level (Apply the greater): (1) (2) 6. 2009 "Gratuity" refers to the offer or acceptance of an unlawful payment other than a bribe.1 effective November 1. 1988 (see Appendix C. "Fiduciary of the benefit plan" is defined in 29 U.2. or who has any discretionary authority or responsibility in the administration of such plan. November 1.3. effective November 1.§2E5. and Fraud). Background: This section covers the giving or receipt of bribes and other unlawful gratuities involving employee welfare or pension benefit plans. 4. amendment 399). Historical Note: Effective November 1. 1987. Extortion Under Color of Official Right. November 1. amended effective June 15.1 (Theft. The seriousness of the offense is determined by several factors. 3. False Statements and Concealment of Facts in Relation to Documents Required by the Employee Retirement Income Security Act. or an embezzlement. amendment 149). Accepting. Amended effective November 1. 2004 (see Appendix C. [Deleted] Historical Note: Section 2E5. or has any authority or responsibility to do so. "Value of the improper benefit to the payer" is explained in the Commentary to §2C1. 1989 (see Appendix C. or who renders investment advice for a fee or other direct or indirect compensation with respect to any moneys or other property of such plan. amendment 150). 1993 (see Appendix C. November 1.1(b)(1) applies. §2E5. 5. 1991 (see Appendix C. Property Destruction. amendment 422). amendment 481).1 2.3 (Abuse of Position of Trust or Use of Special Skill).1 (Offering. or Soliciting a Bribe or Gratuity Affecting the Operation of – 198 – . § 1002(21)(A) to mean a person who exercises any discretionary authority or control in respect to the management of such plan or exercises authority or control in respect to management or disposition of its assets.S. do not apply the adjustment at §3B1. Fraud Involving the Deprivation of the Intangible Right to Honest Services of Public Officials. amendment 617). 2001 (see Appendix C.C. was deleted by consolidation with §2B1. Failure to Maintain and Falsification of Records Required by the Labor Management Reporting and Disclosure Act. or If the offense was committed to facilitate or conceal (A) an offense involving a theft.

amendment 481). amendment 481). 1993 (see Appendix C. 1993 (see Appendix C. was deleted by consolidation with §2B1. Representatives.C. [Deleted] Historical Note: Section 2E5. Representatives. 1989 (see Appendix C. 1520. 1991 (see Appendix C. [Deleted] Historical Note: Section 2E5. 1989 (see Appendix C. 1988 (see Appendix C. §§ 1027. amendment 481).4 (Embezzlement or Theft from Labor Unions in the Private Sector). see Appendix A (Statutory Index). §2E5. Such violations sometimes occur in connection with the criminal conversion of plan funds or schemes involving bribery or graft. 461. §2E5. Amended effective November 1. amended effective November 1. as applicable. §2E5. 1987. 2003 (see Appendix C. the offense level is determined by reference to the offense facilitated by the false statements or documents. Appendix C. – 199 – .3 effective November 1. 1989 (see Appendix C. Commentary Statutory Provisions: 18 U. 1993 (see Appendix C. January 25. was deleted by consolidation with §2E5.1 effective November 1. 1987. amendment 152). was deleted by consolidation with §2E5.6.1 effective November 1. Where a violation under this section occurs in connection with another offense. §§ 439. amendment 422). amendment 647).6 (Prohibited Payments or Lending of Money by Employer or Agent to Employees. effective November 1.6 an Employee Welfare or Pension Benefit Plan. Historical Note: Effective November 1. amended effective November 1. Background: This section covers the falsification of documents or records relating to a benefit plan covered by ERISA.4. effective November 1. 1987.2 (Obstruction of Justice).5 (Failure to Maintain and Falsification of Records Required by the Labor Management Reporting and Disclosure Act). amendment 29) and November 1. November 1.5. [Deleted] Historical Note: Section 2E5. 2009 GUIDELINES MANUAL §2E5. amended effective June 15. or §2J1. 1987. 1131. amendment 151).S. 2003 (see. or Labor Organizations). or Labor Organizations). Prohibited Payments or Lending of Money by Employer or Agent to Employees.C.November 1. amendment 481). amendment 653). 1993 (see Appendix C. amendment 153).S. November 1. It also covers failure to maintain proper documents required by the LMRDA or falsification of such documents. effective November 1. 29 U. For additional statutory provision(s).

[Deleted] Historical Note: Section 2F1. 1998 (see Appendix C. 1988 (see Appendix C. amendment 551). November 1.2. November 1.1 effective November 1. November 1. amendment 617). amendment 617). 596. 2001 (see Appendix C. was deleted by consolidation with §2B1. November 1. §2F1. and 597).Offenses Involving Fraud or Deceit. effective November 1. – 200 – . 1989 (see Appendix C. amendment 30).§2F1.2 (Insider Trading). was deleted due to the deletion of §§2F1. 1995 (see Appendix C.2 effective November 1. 1987. amendments 595. effective November 1. Forgery. November 1. November 1. November 1. effective November 1. [Deleted] Historical Note: Section 2F1. November 1. amended effective June 15.1 (Fraud and Deceit. 2001 (see Appendix C. Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States). 2001 (see Appendix C. amendments 577 and 587). amendments 154-156 and 303).1 effective November 1. 1992 (see Appendix C.1 GUIDELINES MANUAL November 1. amendment 617). amendment 513). amendments 364 and 393). 1987.[DELETED] Historical Note: The heading to Part F .1. 1993 (see Appendix C. 2000 (see Appendix C. November 1. 1990 (see Appendix C. amendments 481 and 482).1 and 2F1. amendment 317). 1997 (see Appendix C. §2F1. 1991 (see Appendix C. was deleted by consolidation with §2B1. amendment 470). 1987. 2009 PART F .

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

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

Amended effective November 1.2. 2009 GUIDELINES MANUAL §2G1. November 1. 2007 (see Appendix C. persuaded. 1987. amendment 701).S.—For the purposes of Chapter Three. or 24. enticed. 1991 (see Appendix C. amended effective November 1. amendment 641). 1989 (see Appendix C. § 2422(b) or § 2423(a). or (ii) engaging in. Sex Trafficking of Children. § 1591(b)(1). otherwise. 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. Consequently. was deleted by consolidation with §2G1. 2009 (see Appendix C. Promoting a Commercial Sex Act or Prohibited Sexual Conduct with a Minor.C. November 1. Historical Note: Effective November 1. a commercial sex act or prohibited sexual conduct is to be treated as a separate victim. 28. amendment 538).2 (Transportation of a Minor for the Purpose of Prostitution or Prohibited Sexual Conduct). or causing another person to engage in. November 1. November 1. 2002 (see Appendix C. or travel to engage in. §2G1. if the defendant was convicted under 18 U.3. amendments 159 and 160). or coerced to engage in. Transportation of Minors to Engage in a Commercial Sex Act or Prohibited Sexual Conduct. amendment 538). 1987.3 than by threatening or placing the victim in fear that any person will be subject to death. 2004 (see Appendix C. amendment 400). amendment 322). if the defendant was convicted under 18 U. 2001 (see Appendix C. [Deleted] Historical Note: Section 2G1.S. Use of Interstate Facilities to Transport Information about a Minor (a) Base Offense Level: (1) (2) (3) 34. effective November 1. multiple counts involving more than one victim are not to be grouped together under §3D1. or communicating unwillingness to engage in.C. (4) – 203 – .C. Upward Departure Provision. November 1. November 1.—If the offense involved more than ten victims. Special Instruction at Subsection (d)(1). November 1. November 1. 2001 (see Appendix C. 2000 (see Appendix C. amendment 323). Part D (Multiple Counts). 1996 (see Appendix C. May 1. induced. each such victim shall be treated as if contained in a separate count of conviction. amendment 444).S. if the defendant was convicted under 18 U. 1989 (see Appendix C. 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. November 1. 5. amendments 157 and 158). 6. 1990 (see Appendix C. amendment 737). 1992 (see Appendix C. and November 1. the sexual act. §2G1. 1996 (see Appendix C. each person transported. or kidnapping). amendment 592). whether specifically cited in the count of conviction. an upward departure may be warranted. 30.2 (Groups of Closely Related Counts). amendment 627). amendment 664). amendment 612). § 1591(b)(2).1 effective November 1. In addition. Travel to Engage in Commercial Sex Act or Prohibited Sexual Conduct with a Minor. 1990 (see Appendix C. November 1. serious bodily injury.November 1.

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

Chapter Three. §§ 1591 (only if the offense involved a minor). 2421 (only if the offense involved a minor). regardless of the "consent" of the minor. "Minor" means (A) an individual who had not attained the age of 18 years.November 1.S. § 1030(e)(1). Part D (Multiple Counts) shall be applied as if the persuasion.S.1 shall apply. Definitions. 2009 GUIDELINES MANUAL §2G1. §2A3. whether fictitious or not. "Participant" has the meaning given that term in Application Note 1 of the Commentary to §3B1.1 (Aggravating Role). "Sexual act" has the meaning given that term in 18 U.S. § 2246(2). (B) an individual.C. § 1591(e)(3). § 1328 (only if the offense involved a minor).S. – 205 – .C.S. 2423.1 (Criminal Sexual Abuse.C.—For purposes of this guideline: "Commercial sex act" has the meaning given that term in 18 U.C. "Illicit sexual conduct" has the meaning given that term in 18 U. § 230(f)(2)).3 attained the age of 12 years. 18 U.S. 2425. § 2423(f). and (ii) could be provided for the purposes of engaging in sexually explicit conduct.C.C. 2422 (only if the offense involved a minor). "Prohibited sexual conduct" has the meaning given that term in Application Note 1 of the Commentary to §2A3. § 2246(3). "Computer" has the meaning given that term in 18 U.S.C. coercion. 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. Commentary Statutory Provisions: 8 U. who a law enforcement officer represented to a participant (i) had not attained the age of 18 years.S. "Interactive computer service" has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U.C. "Sexual contact" has the meaning given that term in 18 U. travel. enticement. Attempt to Commit Criminal Sexual Abuse). Application Notes: 1. (d) Special Instruction (1) If the offense involved more than one minor. 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.—In determining whether subsection (b)(2)(B) applies. the court should closely consider the facts of the case to determine whether a participant’s influence over the minor compromised the voluntariness of the minor’s behavior. Application of Subsection (b)(2).—The enhancement in subsection (b)(2)(A) applies in cases involving the misrepresentation of a participant’s identity to persuade. or other temporary caretakers are among those who would be subject to this enhancement. In determining whether to apply this enhancement. induce. 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.—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 – . do not apply §3B1. entice.—If the enhancement under subsection (b)(1) applies. GUIDELINES MANUAL November 1.3 (Abuse of Position of Trust or Use of Special Skill). or status. occupation. (B) 3. coerce. coerce.— (A) Misrepresentation of Participant’s Identity.—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. However.3 2. Subsection (b)(2)(A) is intended to apply only to misrepresentations made directly to a minor or to a person who exercises custody. would not be a sufficient basis for application of the enhancement. or facilitate the travel of. a minor to engage in prohibited sexual conduct. Application of Subsection (b)(3). day care providers. Accordingly. The voluntariness of the minor’s behavior may be compromised without prohibited sexual conduct occurring. 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. Inapplicability of Chapter Three Adjustment. entice. 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. teachers. or facilitate the travel of. or Supervisory Control. In a case in which a participant is at least 10 years older than the minor. (B) Undue Influence. use of a computer screen name. gender. some degree of undue influence can be presumed because of the substantial difference in age between the participant and the minor. whether temporarily or permanently. there shall be a rebuttable presumption that subsection (b)(2)(B) applies. 4. In such a case. without such intent.— (A) Custody. The misrepresentation to which the enhancement in subsection (b)(2)(A) may apply includes misrepresentation of a participant’s name. care.§2G1. as long as the misrepresentation was made with the intent to persuade. Care. Accordingly. age. or supervisory control of the minor. baby-sitters. 2009 Application of Subsection (b)(1). a minor to engage in prohibited sexual conduct. induce.

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

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

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

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

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

and Fraud) corresponding to the retail value of the material. If the offense involved the use of a computer or an interactive computer service for the possession. 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. increase by 2 levels. of a thing of value. (2) (3) (B) (C) (D) (E) (F) (4) If the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence. increase by 5 levels. (Apply the greatest) If the offense involved: (A) Distribution for pecuniary gain. increase by 2 levels. Distribution to a minor. otherwise. decrease by 2 levels. entice. increase by the number of levels from the table in §2B1. or distribute. 2009 22.1 (Theft. or facilitate the travel of. increase by 5 levels. coerce. (B) the defendant’s conduct was limited to the receipt or solicitation of material involving the sexual exploitation of a minor. increase by 6 levels. Distribution to a minor that was intended to persuade. other than illegal activity covered under subdivision (E). induce. Specific Offense Characteristics (1) If (A) subsection (a)(2) applies. such material. receipt. Distribution to a minor that was intended to persuade. increase by 7 levels. but by not less than 5 levels. the minor to engage in prohibited sexual conduct. Distribution other than distribution described in subdivisions (A) through (E).2 (2) (b) GUIDELINES MANUAL November 1. Property Destruction. and (C) the defendant did not intend to traffic in. but not for pecuniary gain.§2G2. or coerce the minor to engage in any illegal activity. entice. increase by 2 levels. Distribution for the receipt. induce. or expectation of receipt. If the material involved a prepubescent minor or a minor who had not attained the age of 12 years. or for accessing with intent to view the material. or distribution of the material. transmission. increase by 5 levels. increase by 4 levels.

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

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

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

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

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

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

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

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

amendment 164). amendment 592).2 §2G3. The extent to which the obscene material was distributed is approximated by the volume of commerce attributable to the defendant. Amended effective November 1.2.S. Transferring Obscene Matter to a Minor). 1989 (see Appendix C. November 1. Obscene Telephone Communications for a Commercial Purpose. – 221 – . §§ 1464. 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. A former §2G3. If 6 plus the offense level from the table in §2B1.C. 1987.C. increase to that offense level.1 (Theft. amendment 617). 2009 GUIDELINES MANUAL §2G3. or if a broadcast was made between six o’clock in the morning and eleven o’clock at night. 2001 (see Appendix C. increase by 4 levels. 2000 (see Appendix C. § 223(b)(1)(A). 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. 47 U. or Transporting Obscene Matter.November 1.1 (Importing. effective November 1.2 (Obscene or Indecent Telephone Communications). 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.S. Historical Note: Effective November 1. 1468. 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). was deleted effective November 1. 1989 (see Appendix C. (2) Commentary Statutory Provisions: 18 U.

or one instance of assault and one instance of arson). two instances of assault. Subpart 1.OFFENSES INVOLVING INDIVIDUAL RIGHTS 1. 2009 PART H . CIVIL RIGHTS Historical Note: Introductory Commentary to Part H. Commentary Statutory Provisions: 18 U. In such cases. the base offense level. effective November 1. § 3631. (2) (3) (4) (b) Specific Offense Characteristic (1) If (A) the defendant was a public official at the time of the offense. 1987. 242. Application Notes: 1. 1995 (see Appendix C. 42 U.C.g..C. 246. state. "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. cross references.§2H1.S. specific offense characteristics. was deleted effective November 1. 248. otherwise.1 GUIDELINES MANUAL November 1. if the offense involved (A) the use or threat of force against a person. (ii) determine the Chapter Two offense level (i.1. conduct set forth in the count of conviction may constitute more than one underlying offense (e. or (B) the offense was committed under color of law. amendment 521). if the offense involved two or more participants. Part H.. 12. 1091. In certain cases. §2H1. and special instructions) for each such underlying offense. Subpart 1). 10.2 (Applicable Guidelines).e. or 6. §§ 241.S. or (B) property damage or the threat of property damage. increase by 6 levels. 245(b). 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. See Application Note 4 of §1B1. Offenses Involving Individual Rights (a) Base Offense Level (Apply the Greatest): (1) the offense level from the offense guideline applicable to any underlying offense. 247. or local law (other than an offense that is itself covered under Chapter Two. and (iii) compare each of the Chapter Two offense levels determined above with the alternative base offense level under subsection – 222 – .

November 1. 1990 (see Appendix C. §2H1.1 effective November 1. do not apply §3B1. 1989 (see Appendix C. amendment 521). Otherwise. [Deleted] Historical Note: Section 2H1. See §3A1. Use the alternative base offense level only if it is greater than each of the Chapter Two offense levels determined above. if a 6-level adjustment from §2H1. – 223 – . If the finder of fact at trial or. 2. 1991 (see Appendix C.1 effective November 1. amendment 303). 5.1(b) applies. color. however. amendment 430).1(a) will not apply. 1987.4 (a)(2).2. November 1. 1990 (see Appendix C. November 1. 1987. §2H1. If subsection (b)(1) applies. The determination of the applicable alternative base offense level is to be based on the entire conduct underlying the count of conviction (i. was deleted by consolidation with §2H1. Amended effective November 1. amendment 166). 2009 GUIDELINES MANUAL §2H1. was deleted by consolidation with §2H1. amended effective November 1. in the case of a plea of guilty or nolo contendere. an additional 3-level enhancement from §3A1. amendment 165).1 effective November 1.4 (Interference with Civil Rights Under Color of Law). 1987. [Deleted] Historical Note: Section 2H1. amendment 521). §2H1. 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).1(c). Historical Note: Effective November 1. 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. religion.1(a) will apply.2 (Conspiracy to Interfere with Civil Rights). 1995 (see Appendix C. 2000 (see Appendix C. national origin.3. November 1. was deleted by consolidation with §2H1.1 (Aggravating Role).. amendment 521). amendments 313 and 327). or (4). An adjustment from §3A1. [Deleted] Historical Note: Section 2H1.3 (Abuse of Position of Trust or Use of Special Skill). or sexual orientation of any person. 3. Damage to Religious Real Property). 1989 (see Appendix C. disability. "Participant" is defined in the Commentary to §3B1. November 1. 1987. 1995 (see Appendix C. 4. (3). Then apply subsection (b) to the alternative base offense level. the conduct taken as a whole). 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). amendment 327). as appropriate. ethnicity. or to the Chapter Two offense levels for each of the underlying offenses. effective November 1. 1995 (see Appendix C. effective November 1.3 (Use of Force or Threat of Force to Deny Benefits or Rights in Furtherance of Discrimination. 1989 (see Appendix C. 1989 (see Appendix C. effective November 1. amendment 303). gender.e. amended effective November 1. amendment 591). amended effective November 1.4.

deceit. 1989 (see Appendix C. effective November 1. theft.C. 1995 (see Appendix C. §§ 1973i.§2H1. amendment 167) and November 1.5 (Other Deprivations of Rights or Benefits in Furtherance of Discrimination). 593. or 6. or register to vote. 1987. November 1. 1989 (see Appendix C. (2) (3) Commentary Statutory Provisions: 18 U. bribery. 1973j(a). 42 U. or other means. by deceptive or dishonest conduct. Part K (Departures). amendment 661). 2003 (see Appendix C. 597. demanded. amendment 168). – 224 – . amendment 328). 1995 (see Appendix C. 1990 (see Appendix C. if the obstruction occurred by forgery. an upward departure may be warranted. amended effective November 1. Amended effective November 1. POLITICAL RIGHTS §2H2. If the offense resulted in bodily injury or significant property damage. [Deleted] GUIDELINES MANUAL November 1. vote for or against a particular candidate. Application Note: 1. 242. 245(b)(1)(A). or by bribery.1 effective November 1. Part B (Role in the Offense). Background: Alternative base offense levels cover three major ways of obstructing an election: by force. except as provided in (3) below. amendment 521). 2009 Historical Note: Section 2H1. (B) gave false information to establish eligibility to vote. Historical Note: Effective November 1. amendment 534). if the defendant (A) solicited.C. Obstructing an Election or Registration (a) Base Offense Level (Apply the greatest): (1) 18. or 12. see Appendix A (Statutory Index). 1987.S. or agreed to accept anything of value to vote. refrain from voting. or involved corrupting a public official. See Chapter Five. * * * * * 2. November 1. A defendant who is a public official or who directs others to engage in criminal conduct is subject to an enhancement from Chapter Three.5 §2H1. or (C) voted more than once in a federal election.S.5. fraud. was deleted by consolidation with §2H1. accepted. 594. For additional statutory provision(s). (b). §§ 241. 592. if the obstruction occurred by use of force or threat of force against person(s) or property.1. 1015(f).

2009 GUIDELINES MANUAL §2H3. Disclosure of Certain Private or Protected Information (a) Base Offense Level (Apply the greater): (1) (2) 9. or 6. increase by 10 levels. Eavesdropping.C.C. (d)(5)(B). or the defendant is convicted under 18 U. §§ 119. 18 U.C.S.C. Commentary Statutory Provisions: 8 U. Application Notes: 1. (d). apply the guideline applicable to an attempt to commit that other offense. 1039. if the offense of conviction has a statutory maximum term of imprisonment of one year or less but more than six months.S. § 1039(d) or (e). (a)(5). (Apply the greater) If— (A) the defendant is convicted under 18 U. 26 U.November 1. increase by 3 levels. increase by 8 levels. or (B) the purpose of the offense was to obtain direct or indirect commercial advantage or economic gain. 47 U. § 119. For additional statutory provision(s). § 605.1 * * * * * 3.C. 7216.S.C.—If the offense involved interception of satellite cable transmissions for purposes of commercial advantage or private financial gain (including – 225 – .S. if the resulting offense level is greater than that determined above. 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.C. (b) Specific Offense Characteristics (1) If (A) the defendant is convicted under 18 U.1. 1905. § 1375a(d)(3)(C). Interception of Communications. (2) (B) (c) Cross Reference (1) If the purpose of the offense was to facilitate another offense.S.S.S. 2511.C. § 119.S. PRIVACY AND EAVESDROPPING §2H3. Satellite Cable Transmissions. 16984. §§ 16962. §§ 7213(a)(1)-(3). see Appendix A (Statutory Index). 42 U. 7213A.

§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.

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November 1, 2009

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

2.

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

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§2J1.2

PART J - OFFENSES INVOLVING THE ADMINISTRATION OF JUSTICE

§2J1.1.

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

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

2.

3.

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

§2J1.2.

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

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§2J1.2
(1)

GUIDELINES MANUAL

November 1, 2009

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

(B)

(C)

(2)

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

(3)

(c)

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

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

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November 1, 2009

GUIDELINES MANUAL

§2J1.2

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

(B)

3.

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

4.

5.

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

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§2J1.2

GUIDELINES MANUAL

November 1, 2009

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

§2J1.3.

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

(2)

(c)

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

(d)

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

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

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November 1, 2009

GUIDELINES MANUAL

§2J1.4

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

2.

3.

4.

5.

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

§2J1.4.

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

(c)

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

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§2J1.4

GUIDELINES MANUAL

November 1, 2009

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

§2J1.5.

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

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

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

2.

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

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

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

e. amendments 180 and 181). 1987. 1991 (see Appendix C. 1987.8 (Bribery of Witness). 1988 (see Appendix C. and November 1. 1989 (see Appendix C. November 1.3 effective November 1. Part C (Obstruction). 1993 (see Appendix C. In the event that the defendant is convicted under this section as well as for the underlying offense (i. Chapter Three. amendment 179).November 1. 2009 GUIDELINES MANUAL §2J1. Amended effective January 15. – 239 – . Background: This section applies to witness gratuities in federal proceedings. amendment 33). § 201(c)(2). §2J1. [Deleted] Historical Note: Section 2J1. was deleted by consolidation with §2J1.7. 1991 (see Appendix C. Part C (Obstruction) does not apply unless the defendant obstructed the investigation or trial of the payment to witness count. see the Commentary to Chapter Three. 2006 (see Appendix C. 1989 (see Appendix C. November 1. amendment 178).S. 1988 (see Appendix C.C. 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. was deleted from Chapter Two and replaced by §3C1.9.2(c) (Groups of Closely Related Counts). amended effective January 15.8. (3)..3 effective November 1. amendment 32). Commentary Statutory Provisions: 18 U. 1987. [Deleted] Historical Note: Effective November 1. 1989 (see Appendix C. increase by 4 levels. Historical Note: Effective November 1. amendment 431). November 1. amendment 401). amendment 481). §2J1. Amendment 684). Application Notes: 1. For offenses covered under this section. and to §3D1. effective November 1. 2.9 §2J1. Amended effective November 1. the offense with respect to which the payment was made).

§§ 842(j). For additional statutory provision(s). 1987.C. Improper Storage of Explosive Materials (a) Base Offense Level: 6 Commentary Statutory Provisions: 18 U. § 842(p)(2). if the defendant (A) was a prohibited person at the time the defendant committed the instant offense. 1991 (see Appendix C. 16. amendment 404). 20. amendment 481).1 GUIDELINES MANUAL November 1.§2K1. Possession. if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense. 1987.2. 1993 (see Appendix C. imprisonment authorized by statute is one year. amendment 404).C. Prohibited Transactions Involving Explosive Materials (a) Base Offense Level (Apply the Greatest): (1) 24. 1991 (see Appendix C.2 (Improper Storage of Explosive Materials).1 effective November 1. §2K1.1. effective November 1.3. 18. 2009 PART K . (k). or (2) (3) (4) – 240 – . 844(b).S. 1993 (see Appendix C. [Deleted] Historical Note: Section 2K1. if the defendant was convicted under 18 U. Unlawful Receipt. amended effective November 1. §2K1. November 1. EXPLOSIVES AND ARSON §2K1. 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.S. or Transportation of Explosive Materials. Failure to Report Theft of Explosive Materials. or (B) knowingly distributed explosive materials to a prohibited person. see Appendix A (Statutory Index). Amended effective November 1. The maximum term of Historical Note: Effective November 1.OFFENSES INVOLVING PUBLIC SAFETY 1. Background: The above-referenced provisions are misdemeanors. was deleted by consolidation with §2K1. amendment 481).

increase as follows: Weight of Explosive Material (A) (B) (C) (D) (E) (2) At least 25 but less than 100 lbs. § 842(p)(2). If the offense involved any explosive material that the defendant knew or had reason to believe was stolen. or possessed or transferred any explosive material with knowledge. Subpart 1 (Homicide). increase by 2 levels. At least 100 but less than 250 lbs.C. or (B) used or possessed any explosive material in connection with the commission or attempted commission of another offense. or more Increase in Level add 1 add 2 add 3 add 4 add 5. At least 250 but less than 500 lbs. or reason to believe that it would be used or possessed in connection with another felony offense. Specific Offense Characteristics (1) If the offense involved twenty-five pounds or more of explosive materials. Part A. intent. Provided. increase by 4 levels. or Conspiracy) in respect to that other offense if the resulting offense level is greater than that determined above. or (B) used or possessed any explosive material in connection with another felony offense. apply -(A) §2X1. if the resulting offense level is greater than that determined above. the most analogous offense guideline from Chapter Two. At least 500 but less than 1000 lbs. Solicitation. § 842(p)(2).C. otherwise.November 1.3 (5) (b) 12. If the resulting offense level is less than level 18. that the cumulative offense level determined above shall not exceed level 29. increase to level 18.S. 1000 lbs.S. (c) Cross Reference (1) If the defendant (A) was convicted under 18 U. 2009 GUIDELINES MANUAL §2K1. or possessed or transferred any explosive material with knowledge or intent that it would be used or possessed in connection with another offense. (B) – 241 – . or if death resulted.1 (Attempt. (3) If the defendant (A) was convicted under 18 U.

unlawfully 2.§2K1.C.S. A conviction for an offense committed prior to age eighteen years is an adult conviction if it is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted (e. "prohibited person" means any person described in 18 U. whether or not a criminal charge was brought.C.1 (Unlawful Receipt. count only those explosive materials that were unlawfully sought to be obtained. Exclude the weight of any other shipping or packaging materials. (h). For purposes of subsection (a)(4). "Felony offense.3 GUIDELINES MANUAL November 1. For purposes of this guideline: "Controlled substance offense" has the meaning given that term in §4B1. 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. the paper and fuse on a stick of dynamite would be included. For example. 844(d). or Transportation of Firearms or Ammunition. apply §2K2. – 242 – . Possession. 1716.C. Prohibited Transactions Involving Firearms or Ammunition) if the resulting offense level is greater. (l)-(o). may contain explosive materials.2(a) and Application Note 1 of the Commentary to §4B1.1 (Application Instructions). 4.S. regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed." as used in subsection (b)(3). means any offense (federal. For purposes of calculating the weight of explosive materials under subsection (b)(1). § 842(i). "Crime of violence" has the meaning given that term in §4B1.2(b) and Application Note 1 of the Commentary to §4B1.C. A conviction for an offense committed at age eighteen years or older is an adult conviction. "Explosives" is defined at 18 U.C. 6. and detonators. (p)(2). "Explosive material(s)" include explosives.2 (Definitions of Terms Used in Section 4B1.S. § 844(j). defined in the Commentary to §1B1. Where the conduct charged in the count of which the defendant was convicted establishes that the offense involved a destructive device.S. 2283. the box that the dynamite was shipped in would not be included. "Felony conviction" means a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year. §§ 842(a)-(e).. 2009 Commentary Statutory Provisions: 18 U. blasting agents. Application Notes: 1.2.g. § 841(c).1). 3. state. (i). or conviction obtained. 26 U. 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). (g). § 5685.S. A destructive device. See 18 U. 5. For purposes of calculating the weight of explosive materials under subsection (b)(1). or local) punishable by imprisonment for a term exceeding one year.

6 (Weapons and Dangerous Instrumentalities) may be warranted. the offense level for the underlying offense (which may be a federal. Prior felony conviction(s) resulting in an increased base offense level under subsection (a)(1). amendments 629 and 630).1 (Attempt. 1997 (see Appendix C. with respect to an offense under 18 U. November 1. 2003 (see Appendix C.1(a). Appendix C. or unlawfully distributed. 2001 (see Appendix C. including any explosive material that a defendant attempted to obtain by making a false statement. 2009 GUIDELINES MANUAL §2K1. November 1.. November 1. See §4A1. 10. §4A1.S. If the defendant is convicted under 18 U. the defendant used or possessed a firearm to protect the delivery of an unlawful shipment of explosives). amendment 373). use only those felony convictions that are counted separately under §4A1. where the defendant used or possessed a firearm or explosive to facilitate another firearms or explosives offense (e. amendment 568).S. or (a)(4) are also counted for purposes of determining criminal history points pursuant to Chapter Four. For purposes of applying subsection (a)(1) or (2).2(a)(2). 1995 (see Appendix C. or (4) the offense posed a substantial risk of death or bodily injury to multiple individuals. 8. 1989 (see Appendix C. 1992 (see. comment. As used in subsections (b)(3) and (c)(1).g. (2) the explosive materials were of a nature more volatile or dangerous than dynamite or conventional powder explosives (e. or local offense) is to be determined under §2X1. for purposes of subsection (c)(1)(A). amendment 183). do not apply the adjustment in subsection (b)(2) because the base offense level itself takes such conduct into account. (b).1(a). 2002 (see Appendix C. use only those felony convictions that receive criminal history points under §4A1. amendment 534). Solicitation. Part A. (b). amendment 646). amendment 700).C. under the most analogous guideline from Chapter Two. – 243 – .November 1.C. § 842(p)(2). November 1. amendment 478). for purposes of applying subsection (a)(1). Under subsection (c)(1).. November 1.3). (n. 1987.3 possessed. amendment 471). 11. § 842(h) (offense involving stolen explosive materials). (a)(2). an upward departure under §5K2. Subpart 1 (Homicide). Part A (Criminal History). November 1. 1991 (see Appendix C. However. 2007 (see Appendix C. state. and is convicted of no other offenses subject to this guideline. the underlying Federal crime of violence. Amended effective November 1. An upward departure may be warranted in any of the following circumstances: (1) the quantity of explosive materials significantly exceeded 1000 pounds. 9.2. In addition. or Conspiracy) or. (3) the defendant knowingly distributed explosive materials to a person under twenty-one years of age. November 1. or (c). November 1. plastic explosives).g. amendment 655). 7. In addition. 1993 (see. or (c). if death results. Appendix C. "another felony offense" and "another offense" refer to offenses other than explosives or firearms possession or trafficking offenses. November 1. "that other offense" means. Historical Note: Effective November 1.

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

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

amendment 534). 187. Historical Note: Effective November 1. November 1. § 46505 (formerly 49 U. increase by 15 levels. 1995 (see Appendix C. if the resulting offense level is greater than that determined above. Background: This guideline provides an enhancement where the defendant was a person prohibited by federal law from possession of the weapon or material. increase by 2 levels. as appropriate. Amended effective November 1. or Conspiracy). 1991 (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. apply the guideline for such other offense. 1989 (see Appendix C. or §2X1. 186.1 (Attempt. amendment 404). §2K1. Commentary Statutory Provision: 49 U. decrease by 3 levels. amendments 182. November 1. and 303).C.S.C. 1997 (see Appendix C. 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. Solicitation.6.S. A decrease is provided in a case of mere negligence where the defendant was otherwise authorized to possess the weapon or material. 1992 (see Appendix C. § 46505 and he acted with mere negligence.5. GUIDELINES MANUAL November 1.S. 1987. November 1. 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 – . If the defendant’s possession of the weapon or material would have been lawful but for 49 U.§2K1. use the greatest: (1) If the offense was committed willfully and without regard for the safety of human life.5 §2K1. November 1. amendment 560). If the defendant was prohibited by another federal law from possessing the weapon or material.C. amendment 443). or with reckless disregard for the safety of human life. § 1472(l)).

" who are defined at 18 U. or Transportation of Firearms or Ammunition. amendment 303) and November 1. was deleted by consolidation with §2K1. Background: The above-referenced provisions are recordkeeping offenses applicable only to "licensees. amended effective November 1. amendment 373). § 5845(a).7. §2K1. effective November 1.3 effective November 1. if (A) the offense involved a (i) semiautomatic firearm that is capable of accepting a large capacity magazine. amendment 331). amendment 481).C. if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense.1.6 (Shipping. Commentary Statutory Provisions: 18 U. amendment 332).3 (Unlawful Receipt. 1987. 1993 (see Appendix C.S. effective November 1.November 1. Prohibited Transactions Involving Firearms or Ammunition (a) Base Offense Level (Apply the Greatest): (1) 26. A former §2K1. or (ii) firearm that is described in 26 U. 2009 GUIDELINES MANUAL §2K2. Possession. 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. 1990 (see Appendix C. Unlawful Receipt. Using or Carrying Explosives in Certain Crimes). apply §2K1. Prohibited Transactions Involving Explosive Materials). (g). § 841(m). § 5845(a).S. 1989 (see Appendix C. amendment 188).4 effective November 1. FIREARMS §2K2. * * * * * 2. was deleted by consolidation with §2K2. Transporting.S. Possession.S. 24. Historical Note: Effective November 1.1 explosive materials offense. 22. § 842(f). [Deleted] Historical Note: Section 2K1. or Receiving Explosives with Felonious Intent or Knowledge. if (A) the offense involved a (i) semiautomatic firearm that is capable of accepting a large capacity magazine. 1989 (see Appendix C. amended effective November 1. 1990 (see Appendix C. 1991 (see Appendix C.7 (Use of Fire or Explosives to Commit a Federal Felony).C. or (ii) firearm that is described in 26 U.C.C. and (B) the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either (2) (3) – 247 – . amendment 373). or Transportation of Explosives Materials. 1991 (see Appendix C.

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

or reason to believe that it would be used or possessed in connection with another felony offense.C. intent.S.S. (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 if death resulted. increase to the offense level for the substantive offense. 26 U. or Conspiracy) in respect to that other offense. (x)(1).C. if the resulting offense level is greater than that determined above. (k)-(o). 2009 GUIDELINES MANUAL §2K2. (4) If any firearm (A) was stolen. Part A.November 1. increase by 2 levels. increase by 4 levels. 2332g. (B) Commentary Statutory Provisions: 18 U. or possessed or transferred any firearm or ammunition with knowledge. If a recordkeeping offense reflected an effort to conceal a substantive offense involving firearms or ammunition. increase to level 18.1 (Attempt. (r)-(w). increase by 4 levels. For additional statutory provisions. (b). except if subsection (b)(3)(A) applies. apply -(A) §2X1. § 5861(a)-(l). (5) If the defendant engaged in the trafficking of firearms. if the resulting offense level is greater than that determined above. increase by 2 levels. increase by 4 levels. – 249 – . Solicitation. 924(a). If the resulting offense level is less than level 18. (e)-(i). If the defendant used or possessed any firearm or ammunition in connection with another felony offense.1 (B) a destructive device other than a destructive device referred to in subdivision (A). the most analogous offense guideline from Chapter Two. or (B) had an altered or obliterated serial number. §§ 922(a)-(p). The cumulative offense level determined from the application of subsections (b)(1) through (b)(4) may not exceed level 29. Subpart 1 (Homicide). or possessed or transferred a firearm or ammunition with knowledge or intent that it would be used or possessed in connection with another offense. see Appendix A (Statutory Index).

2.1 Application Notes: 1. Application of Subsection (b)(1). 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. "Crime of violence" has the meaning given that term in §4B1.C. § 922(g) or § 922(n). 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).—For purposes of calculating the number of firearms under subsection (b)(1).C.§2K2.—For purposes of subsections (a)(1). a reduction in the base offense level to no lower than level 6 may be warranted to reflect the less serious nature of the violation.2. "Destructive device" has the meaning given that term in 26 U. "Controlled substance offense" has the meaning given that term in §4B1. count only those firearms that were unlawfully sought to be obtained. In the unusual case in which it is established that neither avoidance of state.— For purposes of this guideline: "Ammunition" has the meaning given that term in 18 U. "prohibited person" means any person described in 18 U. GUIDELINES MANUAL November 1. Application of Subsection (a)(7). or for some other underlying unlawful purpose. § 921(a)(17)(A).S. local. which is frequently committed in violation of state.S.2 (Definitions of Terms Used in Section 4B1. 5. (a)(3). or other federal firearms law. § 921(a)(3).C.2(a) and Application Note 1 of the Commentary to §4B1. § 5845(f).S.—For purposes of subsections (a)(4)(B) and (a)(6).. – 250 – . 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. Definition of "Prohibited Person". "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 (B) a magazine or similar device that could accept more than 15 rounds of ammunition was in close proximity to the firearm. and (a)(4). Semiautomatic Firearm Capable of Accepting a Large Capacity Magazine. This definition does not include a semiautomatic firearm with an attached tubular device capable of operating only with .— Subsection (a)(7) includes the interstate transportation or interstate distribution of firearms. "Firearm" has the meaning given that term in 18 U.C.g.22 caliber rim fire ammunition. 3. A conviction for an offense committed at age eighteen years or older is an adult conviction. 2009 Definitions. or other federal law restricting the possession of firearms.2(b) and Application Note 1 of the Commentary to §4B1. local. 4.S. A conviction for an offense committed prior to age eighteen years is an adult conviction if it is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted (e.1).

This is because the base offense level takes into account that the firearm or ammunition was stolen. However. and the applicable enhancement under subsection (b)(3). Relevant surrounding circumstances include the number and type of firearms. apply subsection (b)(4)(A). However. Such devices pose a considerably greater risk to the public welfare than other National Firearms Act weapons. the location and circumstances of possession and actual use.1 applies is 18 U. § 5845(a) (e.C. § 922(k) or 26 U.—Under subsection (b)(2). the amount and type of ammunition. Application of Subsection (b)(2). This is because the base offense level takes into account that the firearm had an altered or obliterated serial number. provides for a reduction to an offense level of 6. or unlawfully distributed. and 5K2. apply subsection (b)(4)(B).14 (Public Welfare). if the offense involved a firearm with an altered or obliterated serial number. and the extent to which possession was restricted by local law.1 unlawfully possessed. or 18 U. 2009 GUIDELINES MANUAL §2K2.—Subsection (b)(4) applies regardless of whether the 7. the nature of the defendant’s criminal history (e.—If the only offense to which §2K2. See also §§5K2. Offenses involving such devices cover a wide range of offense conduct and involve different degrees of risk to the public welfare depending on the type of destructive device involved and the location or manner in which that destructive device was possessed or transported. (j). including any firearm that a defendant obtained or attempted to obtain by making a false statement to a licensed dealer. prior convictions for offenses involving firearms). § 922(i). § 924(l) or (m) (offenses involving a stolen firearm or stolen ammunition) and the base offense level is determined under subsection (a)(7). 8.1 applies is 18 U. (a)(4)(B).C. For example. if the offense to which §2K2.C. Application of Subsection (b)(4).S.2 (Physical Injury).C. (a)(3). an upward departure may be warranted. it the offense involved a stolen firearm or stolen ammunition.S.g. subsection (a)(1). 6..(a)(5).— (A) Interaction with Subsection (a)(7). 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. and a substantially greater risk of death or serious bodily injury. "lawful sporting purposes or collection" as determined by the surrounding circumstances.1 (Death).S. or (a)(5)). than an incendiary device in an isolated area.C. Similarly. – 251 – . subsection (b)(2) is not applicable. do not apply the enhancement in subsection (b)(4)(A). a pipe bomb in a populated train station creates a substantially greater risk to the public welfare. do not apply the enhancement in subsection (b)(4)(B). § 5861(g) or (h) (offenses involving an altered or obliterated serial number) and the base offense level is determined under subsection (a)(7). or (u).S. Note that where the base offense level is determined under subsections (a)(1) ..—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. 5K2.g.November 1. Destructive Devices. the risk to the public welfare.S. (B) Knowledge or Reason to Believe. or the risk of death or serious bodily injury that the destructive device created.

2(a)(2).C.2. destructive devices).3). transferred. (a)(4)(A).C. use only those felony convictions that receive criminal history points under §4A1. regardless of whether anything of value was exchanged.g. or otherwise dispose of firearms to another individual. Prior Felony Convictions. or (4)(A). transfer. (3).C. or (c).—For purposes of applying subsection (a)(1).— Under subsection (b)(7). and knew or had reason to believe that such conduct would result in the transport.— (A) In General. machineguns. or (a)(6) are also counted for purposes of determining criminal history points pursuant to Chapter Four. 12. or otherwise disposed of two or more firearms to another individual. or (c). transfer.4. if the defendant— (i) transported. the offense level is increased to the offense level for the substantive firearms or ammunition offense (e. § 924(e) is an Armed Career Criminal. Armed Career Criminal.§2K2. Application of Subsection (b)(5). or who intended to use or dispose of the firearm unlawfully.g. if a record-keeping offense was committed to conceal a substantive firearms or ammunition offense. for purposes of applying subsection (a)(1) and (a)(2).1(a). See §4A1. (2) the offense involved multiple National Firearms Act weapons (e. (a)(4)(B). In addition.. or (4) the offense posed a substantial risk of death or bodily injury to multiple individuals (see Application Note 7). § 922(p)). 9.S. Prior felony conviction(s) resulting in an increased base offense level under subsection (a)(1). or disposal of a firearm to an individual— (I) (II) whose possession or receipt of the firearm would be unlawful. use only those felony convictions that are counted separately under §4A1. (n. (a)(2). comment. military type assault rifles. if the defendant falsifies a record to conceal the sale of a firearm to a prohibited person. (3) the offense involved large quantities of armor-piercing ammunition (defined at 18 U. Application of Subsection (b)(7). (a)(3)..S. the offense level is increased to the offense level applicable to the sale of a firearm to a prohibited person).—A defendant who is subject to an enhanced sentence under the provisions of 18 U. Upward Departure Provisions. Part A (Criminal History).—Subsection (b)(5) applies. non-detectable ("plastic") firearms (defined at 18 U. (b).—An upward departure may be warranted in any of the following circumstances: (1) the number of firearms substantially exceeded 200. or received two or more firearms with the intent to transport.1(a). § 921(a)(17)(B)). (2). (b). 2009 defendant knew or had reason to believe that the firearm was stolen or had an altered or obliterated serial number. (ii) – 252 – . See §4B1. 11.S. 13.1 GUIDELINES MANUAL November 1. §4A1. 10.

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

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

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

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

provides a mandatory term of imprisonment. Chapters Three and Four.—Except for those cases covered by subsection (c). 1987. 1993 (see Appendix C. Sections 924(c) and 929(a) of title 18. § 844(h). In determining the guideline sentence for those cases covered by subsection (c): (A) the adjustment in §3E1. This is required because the offense level for the underlying offense may be reduced when there is also a conviction under 18 U. when a sentence under this section is imposed in conjunction with a sentence for an underlying offense. other than §§4B1. See §§3D1. although a fine is authorized under 18 U. 2009 GUIDELINES MANUAL §2K2. amendments 481 and 489). amendment 696). and 600). The Commission has not established a fine guideline range for the unusual case in which there is no conviction for the underlying offense. or – 257 – . Amended effective November 1. a consolidated fine guideline is determined by the offense level that would have applied to the underlying offense absent a conviction under 18 U. amendment 332). §2K2. November 1. 1989 (see Appendix C. Fines. 2002 (see Appendix C.1 and 4B1. November 1. 7. § 3571.C.— Imposition of a term of supervised release is governed by the provisions of §5D1. 599. any specific offense characteristic for explosive or firearm discharge.November 1. Background: Section 844(h) of title 18. or § 929(a) in that any specific offense characteristic for possession. § 844(h). amendments 598. Historical Note: Effective November 1.5 5. as provided in §4B1. Possession of Firearm or Dangerous Weapon in Federal Facility.2. 1991 (see Appendix C.1 (Procedure for Determining Offense Level on Multiple Counts) and 5G1. use.5. use. Where there is also a conviction for the underlying offense. shall apply. November 1.C. 2006 (see Appendix C. 2000 (see Appendix C. United States Code. November 1. or possession is not applied in respect to such underlying offense.S. do not apply Chapter Three (Adjustments) and Chapter Four (Criminal History and Criminal Livelihood) to any offense sentenced under this guideline. To avoid double counting. 1990 (see Appendix C. brandishing. November 1. November 1. amendment 190).2. § 924(c).— Subsection (d) sets forth special provisions concerning the imposition of fines. A sentence imposed pursuant to any of these statutes must be imposed to run consecutively to any other term of imprisonment. Such offenses are excluded from application of those chapters because the guideline sentence for each offense is determined only by the relevant statute. provide mandatory minimum terms of imprisonment. amendment 405). or discharge of a firearm is not applied (see Application Note 4).1(c).1 (Acceptance of Responsibility) may apply.S. amendment 642). or § 929(a). brandishing.S. and (B) no other adjustments in Chapter Three and no provisions of Chapter Four. 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. Terms of Supervised Release.1 (Imposition of a Term of Supervised Release). United States Code.C. 6. § 924(c).

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

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

C. – 260 – .C. The Commission has not promulgated a guideline for the misdemeanor provisions of this statute. (2) Commentary Statutory Provision: 18 U. §2K3.1. 1993 (see Appendix C. * * * * * 3. amendment 481).§2K2. § 1716 (felony provisions only). Solicitation. was deleted by consolidation with §2Q1.1 (Attempt.2 effective November 1. § 931 offense and that other felony offense shall be grouped pursuant to subsection (c) of §3D1. 1993 (see Appendix C. 1987. effective November 1.S. Amended effective November 1. the counts of conviction for the 18 U. amendment 670).S. 2009 includes a count of conviction for that other felony offense. amendment 481). Historical Note: Effective November 1. 2004 (see Appendix C. 1987. or If death resulted.2 (Groups of Closely Related Counts).1 (Unlawfully Transporting Hazardous Materials in Commerce). Part A. Feloniously Mailing Injurious Articles (a) Base Offense Level (Apply the greater): (1) If the offense was committed with intent (A) to kill or injure any person. amendment 334).C. Subpart 1 (Homicide).2. apply §2X1. [Deleted] Historical Note: Section 2K3. Historical Note: Effective November 1.6 GUIDELINES MANUAL November 1. or Conspiracy) in respect to the intended offense. or (B) to injure the mails or other property. MAILING INJURIOUS ARTICLES Historical Note: Effective November 1. § 1716. §2K3. 1990 (see Appendix C.S. apply the most analogous offense guideline from Chapter Two. Background: This guideline applies only to the felony provisions of 18 U.

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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§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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§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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§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.S. – 272 – . § 1428. GUIDELINES MANUAL November 1.C.§2L2. Historical Note: Effective November 1.5 §2L2. 1987.5.

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

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

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

Unauthorized Receipt of Classified Information (a) Base Offense Level: (1) (2) 29. 2003 (see Appendix C. See Commentary to §2M3. § 783(b). § 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. If the defendant was convicted of 18 U. 1987. Unauthorized Disclosure to a Foreign Government or a Communist Organization of Classified Information by Government Employee. if top secret information. 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.C. Proof that the item was communicated with reason to believe that it could be used to the injury of the United States or the advantage of a foreign nation is required only where intangible information is communicated under 18 U. sketch. GUIDELINES MANUAL November 1. photograph. blueprint. – 276 – . Background: The statutes covered in this section proscribe willfully transmitting or communicating to a person not entitled to receive it a document. Background: The statutes covered in this section proscribe diverse forms of obtaining and transmitting national defense information with intent or reason to believe the information would injure the United States or be used to the advantage of a foreign government.S.C. signal book.S. otherwise.§2M3.C. 1993 (see Appendix C. § 793(d) or (e). (e). photographic negative. model.2.3 may apply.2 2. Historical Note: Effective November 1. 2009 If the defendant is convicted under 18 U. code book.C. apply §2M3. the unauthorized disclosure to a foreign government or a communist organization of classified information by a government employee. amendment 654). map. appliance. and the unauthorized receipt of classified information. Commentary Statutory Provisions: 18 U.S. writing. amendment 481). §§ 793(d). 50 U.1. Historical Note: Effective November 1. or 24.3.S. Transmitting National Defense Information. Disclosure of Classified Cryptographic Information. plan. instrument. Amended effective November 1.S. See Commentary to §2M3. §2M3. (g).C. Amended effective November 1. 798. § 793(d) or (e). or note relating to the national defense. 2. 1987.3. (c). Application Notes: 1. §2M3.

Losing National Defense Information (a) Base Offense Level: (1) (2) 18. otherwise.6 (Disclosure of Classified Cryptographic Information). – 277 – .5. amendment 481). 1987. but rather the loss of classified information by the gross negligence of an employee of the federal government or a federal contractor. Commentary Statutory Provision: 18 U.S. §2M3. See Commentary to §2M3. 1987. effective November 1. See Commentary to §2M3. 2009 GUIDELINES MANUAL §2M3. § 2276.1. Application Note: 1. was deleted by consolidation with §2M3. 1993 (see Appendix C.3 effective November 1. Application Note: 1.C.4. 1987. Background: Offenses prosecuted under this statute generally do not involve subversive conduct on behalf of a foreign power. or 13.S. if top secret information was lost. Tampering with Restricted Data Concerning Atomic Energy (a) Base Offense Level: 24 Commentary Statutory Provision: 42 U.1.November 1. § 793(f).6.C.6 §2M3. §2M3. Historical Note: Effective November 1. Historical Note: Effective November 1. [Deleted] Historical Note: Section 2M3.

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

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

§2M5. – 280 – . or shotguns). an upward departure may be warranted. handguns. 50 U. Commentary Statutory Provisions: 18 U. 2009 were evaded.C. if the offense involved only non-fully automatic small arms (rifles. Application Notes: 1. November 1. and whether there were multiple occurrences. Part K (Departures). and the number of weapons did not exceed ten.S.C. Exportation of Arms. App. §§ 2401-2420. § 2410 contains provisions for criminal fines and forfeiture as well as civil penalties. amendment 633). Amended effective November 1. amendment 637). 50 U. The maximum fine for individual defendants is $250.000. otherwise. 1987. the maximum fine is five times the value of the exports involved or $1 million. the extent of planning or sophistication. When national security controls are violated.C. 2002 (see Appendix C.C.1 GUIDELINES MANUAL November 1. 2001 (see Appendix C. the court may consider the degree to which the violation threatened a security interest of the United States. Historical Note: Effective November 1. or (2) 14. Where such factors are present in an extreme form.S. the volume of commerce involved. in addition to any other sanction. In the case of a violation during time of war or armed conflict. or (B) the offense involved a financial transaction with a country supporting international terrorism. property used to export or attempt to export that was the subject of the violation. 14. 2405).§2M5. See Chapter Five. or claim against: any goods or tangible items that were the subject of the violation.S. In addition to the provisions for imprisonment. In determining the sentence within the applicable guideline range. the defendant is subject to forfeiture of any interest in. For purposes of subsection (a)(1)(B). In the case of corporations.2. except as provided in subdivision (2) below. a departure from the guidelines may be warranted. § 2332d. and any proceeds obtained directly or indirectly as a result of the violation. 2. App. Munitions. or Military Equipment or Services Without Required Validated Export License (a) Base Offense Level: (1) (2) 26. 4. 3. whichever is greater.S. security of. App. "a country supporting international terrorism" means a country designated under section 6(j) of the Export Administration Act (50 U.

or reason to believe such funds would be used to purchase any of the items described in subdivisions (A) through (C). Application Notes: 1. which is set out in 22 C. 2007 (see Appendix C. 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. § 554.2 (Second – 281 – . Part K (Departures).C. bombs.3 Commentary Statutory Provisions: 18 U. 22 U. shells.1.S. artillery. an upward departure may be warranted. the extent of planning or sophistication. (D) funds with the intent. 2009 GUIDELINES MANUAL §2M5. explosives. §§ 2778. or reason to believe they are to be used to commit or assist in the commission of a violent act. apply §2A1. § 2778. 2.S.C. amendment 337). knowledge. November 1. (C) explosives. 2780.S. increase by 2 levels. the court may consider the degree to which the violation threatened a security or foreign policy interest of the United States. 2001 (see Appendix C.R. through a licensing system administered by the Department of State.C. military and space electronics. In determining the sentence within the applicable guideline range. (c) Cross References (1) If the offense resulted in death. a departure from the guidelines may be warranted. Part 121. §2M5.1 (First Degree Murder) if the death was caused intentionally or knowingly. 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. to control exports of defense articles and defense services that he deems critical to a security or foreign policy interest of the United States. See Chapter Five. missiles. and certain firearms. Amended effective November 1.November 1. Providing Material Support or Resources to Designated Foreign Terrorist Organizations or Specially Designated Global Terrorists. The items subject to control constitute the United States Munitions List. Historical Note: Effective November 1. In the unusual case where the offense conduct posed no such risk. November 1. 1990 (see Appendix C. and whether there were multiple occurrences. helicopters. or (E) funds or other material support or resources with the intent. Where such factors are present in an extreme form. rockets. Under 22 U. the volume of commerce involved. knowledge. (B) firearms.F. amendment 700). 1987.3. vessels of war. In the case of a violation during time of war or armed conflict. a downward departure may be warranted. Included in this list are such things as military aircraft. amendment 633). or §2A1. the President is authorized.

S. Departure Provisions. and "destructive device" have the meaning given those terms in Application Note 1 of the Commentary to §1B1. if the resulting offense level is greater than that determined above. (B) a chemical weapon. or nuclear byproduct material. "Foreign terrorist organization" has the meaning given the term "terrorist organization" in 18 U.F.R. apply §2M6. 2339C(a)(1)(B). 2339B. If the offense involved the provision of (A) a nuclear weapon. (c)(2)(B) (but only with respect to funds known or intended to have been provided or collected in violation of 18 U. Biological.S. (C) a biological agent.1 (Nuclear.4 (Arson. and Chemical Weapons.C. "Explosives" has the meaning given that term in Application Note 1 of the Commentary to §2K1. "Specially designated global terrorist" has the meaning given that term in 31 C. § 2339C(a)(1)(B)). 2009 Degree Murder) otherwise. Attempted Murder). 1705. apply §2A2. Property Damage by Use of Explosives). Definitions.C.C. 2284. "firearm". "toxin". §§ 2283.§2M5. the court may consider the degree to which the violation threatened a security interest of the United States. "Material support or resources" has the meaning given that term in 18 U. § 594. 2.C. and whether there were multiple occurrences. 50 U. – 282 – . § 2339B(g)(6).1 (Nuclear.C. (2) If the offense was tantamount to attempted murder.S. §§ 1701.1 (Application Instructions).S. or (D) a weapon of mass destruction. "chemical weapon". the volume of the funds or other material support or resources involved. and "weapon of mass destruction" have the meaning given those terms in Application Note 1 of the Commentary to §2M6. if the resulting offense level is greater than that determined above. nuclear material. the extent of planning or sophistication. if the resulting offense level is greater than that determined above.513. toxin.S. and Chemical Weapons.— (A) In General. Biological.3 GUIDELINES MANUAL November 1.—For purposes of this guideline: "Biological agent". (3) Commentary Statutory Provisions: 18 U. § 2339B(g)(4). "nuclear byproduct material". Application Notes: 1. and Other Weapons of Mass Destruction). or delivery system. and Other Weapons of Mass Destruction). "nuclear material". "Dangerous weapon".—In determining the sentence within the applicable guideline range.1 (Assault with Intent to Commit Murder.

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

Definitions. 1992(a)(2). or (B) conduct tantamount to the attempted murder of more than one victim. 175c. § 229F(1). 2009 4 levels. If the offense was tantamount to attempted murder. or (iii) the degree of injury is between that specified in subdivisions (i) and (ii). (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. apply §2A1. Application Notes: 1. § 178(1). 2131.1 GUIDELINES MANUAL November 1. or (a)(4) applies. increase by 4 levels. 2291. 842(p)(2) (only with respect to weapons of mass destruction as defined in 18 U. (a)(4). Commentary Statutory Provisions: 18 U. (b)(2).S. 229.C. increase by 2 levels. and (D)). Chapter Three.S.C.1 (Assault with Intent to Commit Murder. §§ 2077(b). "Chemical weapon" has the meaning given that term in 18 U. or (ii) a substantial expenditure of funds to clean up. governmental. or otherwise respond to the offense. For additional statutory provision(s).S. (ii) any victim sustained serious bodily injury. (c) Cross References (1) If the offense resulted in death. 2283.C. (a)(3). Part D (Multiple Counts) shall be applied as if such conduct in respect to each victim had been contained in a separate count of conviction. 175b.2 (Second Degree Murder) otherwise. 2122.C. if the resulting offense level is greater than that determined above. or serious bodily injury of more than one victim. §§ 175.—For purposes of this guideline: "Biological agent" has the meaning given that term in 18 U. 2332h. or business functions or services. and (B) includes an organization designated by the Secretary of State as a – 284 – .§2M6. (C). and (B) the offense resulted in (i) substantial disruption of public. § 2332a(c)(2)(B). life-threatening. or §2A1. "Foreign terrorist organization" (A) means an organization that engages in terrorist activity that threatens the security of a national of the United States or the national security of the United States.S. if the resulting offense level is greater than that determined above. 831. 832. increase by 3 levels. see Appendix A (Statutory Index). (a)(3).C. decontaminate. Attempted Murder). 42 U.S.1 (First Degree Murder) if the death was caused intentionally or knowingly. (3) If (A) subsection (a)(2).

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

if the offense was committed with intent to injure the United States or to aid a foreign nation. Amended effective November 1. amendment 686). and Regulations (a) Base Offense Level (Apply the greater): (1) 30. This provision covers. 2009 Application of Special Instruction. November 1. Background: This section applies to offenses related to nuclear energy not specifically addressed elsewhere. §2M6. November 1. November 1. 2002 (see Appendix C. amendment 633). 2005 (see Appendix C. November 1. 1987. 2007 (see Appendix C. amendment 679).§2M6. amendment 655). for example. § 2273. GUIDELINES MANUAL November 1. amendment 637).—Subsection (d) applies in any case in which the defendant is convicted of a single count involving (A) the death or permanent.1 3. license conditions. violations of statutes dealing with rules and regulations.S. 1987. 1990 (see Appendix C. Historical Note: Effective November 1. amendment 359). or serious bodily injury of more than one victim. life-threatening. amendments 699 and 700). 2001 (see Appendix C. and orders of the Nuclear Regulatory Commission and the Department of Energy. 2003 (see Appendix C. – 286 – .C. November 1. or 6.2. 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). Rules. Historical Note: Effective November 1. Amended effective November 1. or (B) conduct tantamount to the attempted murder of more than one victim. Violation of Other Federal Atomic Energy Agency Statutes. 2006 (see Appendix C. (2) Commentary Statutory Provision: 42 U.

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

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

Device. 620. DRUGS. AGRICULTURAL PRODUCTS. an upward departure may be warranted.S. § 331 after sustaining a prior conviction under 21 U.C. 21 U. 619.S. or Consumer Product (a) (b) Base Offense Level: 6 Specific Offense Characteristic (1) If the defendant was convicted under 21 U. 1987. 611. 333(a)(1). 458-461. 2009 GUIDELINES MANUAL §2N2. Amended effective November 1. (a)(2). 2009 (see Appendix C. see Appendix A (Statutory Index). 8313.S. §§ 115. apply that other offense guideline if the resulting offense level is greater than that determined above.C. 117. 617. If death or bodily injury. amendment 733). Property Destruction. Biological Product. Part K (Departures). 7734.1 Application Note: 1. (c) Cross References (1) If the offense involved fraud.S. 466. (2) Commentary Statutory Provisions: 7 U. 150gg. Where only negligence was involved.1. 614. § 262. 42 U. 463. 134-134e. increase by 4 levels. For additional statutory provision(s). §§ 150bb.S. See Chapter Five. * * * * * 2.C. an offense covered by another offense guideline. or substantial property damage or monetary loss resulted. a downward departure may be warranted.1 (Theft. AND CONSUMER PRODUCTS Historical Note: Effective November 1. Agricultural Product.November 1.C. §2N2. 1987. – 289 – . Cosmetic. Historical Note: Effective November 1.C. and Fraud). § 331. Drug. 642644. See Chapter Five. 676. Violations of Statutes and Regulations Dealing With Any Food. apply §2B1. extreme psychological injury. Part K (Departures). 6810. 610. 122. This guideline assumes a regulatory offense that involved knowing or reckless conduct. 151-158. (b). FOOD. Application Notes: 1. or to conceal. If the offense was committed in furtherance of. 331.

but not containing any active ingredient. 1990 (see Appendix C.. apply §2B1.C.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. an offense covered by another offense guideline (e. November 1. Part D (Offenses Involving Drugs and Narco-Terrorism).S. 2001 (see Appendix C. amendment 617). 2009 The cross reference at subsection (c)(1) addresses cases in which the offense involved fraud. amendment 685). amendment 340). extreme psychological injury. November 1. The defendant was convicted under 7 U. by the victim for such substance. ODOMETER LAWS AND REGULATIONS §2N3. and Fraud). property damage. See Chapter Five. § 7734. 2009 (see Appendix C.§2N2. 1991 (see Appendix C. 2007 (see Appendix C.1.1 2. amendment 711). and Fraud) with "loss" measured by the amount paid. Property Destruction. Property Destruction. amendment 661). Part K (Departures). apply §2B1. 1987. Historical Note: Effective November 1.1 (Theft. 32709(b). 1992 (see Appendix C. The Commission has not promulgated a guideline for violations of 21 U. Upward Departure Provisions. November 1.g. §§ 32703-32705. (B) 4. November 1. 3. Amended effective November 1. GUIDELINES MANUAL November 1. amendment 451). The cross reference at subsection (c)(2) addresses cases in which the offense was committed in furtherance of.1 (Theft. or bodily injury. or to conceal. death. amendment 733). November 1.C. November 1. 2006 (see Appendix C. – 290 – . amendment 432). 2008 (see Appendix C. § 333(e) (offenses involving human growth hormones). 2002 (see Appendix C. 2003 (see Appendix C. Odometer Laws and Regulations (a) (b) Base Offense Level: 6 Cross Reference (1) If the offense involved more than one vehicle. or to be paid. November 1. Offenses involving anabolic steroids are covered by Chapter Two.S. amendment 646). In the case of an offense involving a substance purported to be an anabolic steroid. Commentary Statutory Provisions: 49 U. or monetary loss resulted from the offense. November 1.S. amendment 723). bribery). November 1. * * * * * 3.

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

or where a defendant escaped from an institution with no physical perimeter barrier). however.§2P1. "Non-secure custody" means custody with no significant physical restraint (e. committed any federal.OFFENSES INVOLVING PRISONS AND CORRECTIONAL FACILITIES §2P1.S. increase by 2 levels. Provided. state. § 1826. 8. (2) (3) (4) Commentary Statutory Provisions: 18 U. or an employee of the Department of Justice. that this reduction shall not apply if the defendant. (2) (b) Specific Offense Characteristics (1) If the use or the threat of force against any person was involved. where a defendant failed to return to any institution from a pass or unescorted furlough.1. For additional statutory provision(s). If the defendant escaped from the non-secure custody of a community corrections center. decrease the offense level under §2P1. and subsection (b)(2) is not applicable. §§ 751.1(a)(2) by 4 levels." or similar facility.C. 752. 28 U. – 292 – . however. community treatment center. Application Notes: 1. Instigating or Assisting Escape (a) Base Offense Level: (1) 13. or local offense punishable by a term of imprisonment of one year or more. Escape. otherwise. or local offense punishable by a term of imprisonment of one year or more. 755. decrease the offense level under subsection (a)(1) by 4 levels or the offense level under subsection (a)(2) by 2 levels. if the custody or confinement is by virtue of an arrest on a charge of felony.C. If the defendant was a law enforcement or correctional officer or employee. If the defendant escaped from non-secure custody and returned voluntarily within ninety-six hours. state. 2009 PART P ..1 GUIDELINES MANUAL November 1. while away from the facility. committed any federal. or conviction of any offense. increase by 5 levels. where a defendant walked away from a work detail outside the security perimeter of an institution.g. see Appendix A (Statutory Index). Provided. while away from the facility. that this reduction shall not apply if the defendant.1(a)(1) by 7 levels or the offense level under §2P1. at the time of the offense. "halfway house.S.

Criminal history points under Chapter Four. 4. 6.3 (Abuse of Position of Trust or Use of Special Skill). or a narcotic drug.1(e) (recency) would be applicable. 1991 (see Appendix C. increase by 2 levels. if the object was a weapon (other than a firearm or a destructive device). LSD. 1987. PCP. See Chapter Five. Part A (Criminal History) are to be determined independently of the application of this guideline. an upward departure may be warranted. (3) (4) (b) Specific Offense Characteristic (1) If the defendant was a law enforcement or correctional officer or employee. ammunition. or an employee of the Department of Justice. 4. amendments 200 and 201). 6. "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). methamphetamine. 3.2.1(b) (for the sentence being served at the time of the escape). criminal history points from §4A1. For example. United States or foreign currency. if the object was any other object that threatened the order. §2P1. November 1. amendment 341). If death or bodily injury resulted. 5. If the adjustment in subsection (b)(1) applies as a result of conduct that involves an official victim. Part K (Departures).2 (Official Victim). or a controlled substance (other than LSD. or security of the institution or the life. do not apply §3A1. at the time of the offense. 2009 GUIDELINES MANUAL §2P1. health. – 293 – . methamphetamine. §4A1. any object that might be used as a weapon or as a means of facilitating escape. and §4A1. in the case of a defendant serving a one-year sentence of imprisonment at the time of the escape. PCP. discipline. if the object was a firearm or destructive device.November 1.2 2. Providing or Possessing Contraband in Prison (a) Base Offense Level: (1) (2) 23. November 1.1(d) (custody status). If the adjustment in subsection (b)(4) applies. 1989 (see Appendix C. Historical Note: Effective November 1. Amended effective November 1. no adjustment is to be made under §3B1. or safety of an individual. 1990 (see Appendix C. amendment 406). or a narcotic drug). 13. if the object was an alcoholic beverage.

If the adjustment in §2P1. 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. 2005 (see Appendix C.C.2(c). Therefore.C.) The combined sentence will then be constructed to provide a "total punishment" that satisfies the requirements both of §5G1. 2. § 1791(a)(1) and is punishable under 18 U. November 1. comment.1(b)(1).2 (c) Cross Reference (1) GUIDELINES MANUAL November 1. increase to level 26. apply the offense level from §2D1. Historical Note: Effective November 1. Amended effective November 1. § 1791. the grouping rules of §§3D1. Attempt or Conspiracy).S.C. amendment 579). 1987. comment. Provided.1).S. unlike a count in which the statute mandates both a minimum and a consecutive sentence of imprisonment.2.2 (Sentencing on Multiple Counts of Conviction) and 18 U.§2P1. Application Notes: 1. 1995 (see Appendix C. Exporting.C. if the combined applicable guideline range for both counts is 30-37 months and the court determines a "total punishment" of 36 months is appropriate.1).S. Commentary Statutory Provision: 18 U. November 1. Importing. § 1791(b)(1). no adjustment is to be made under §3B1.C. 1989 (see Appendix C. For example. See §3D1.S. § 1791(c).C. (n. Pursuant to 18 U.1 (Unlawful Manufacturing. § 1791 shall be consecutive to the sentence being served by the inmate at the time of the violation. section 1791(c) requires that the sentence be imposed to run consecutively to any other sentence of imprisonment for the controlled substance. group the offenses together under §3D1. and §3D1.2(b)(1) applies. (n. 2009 If the object of the offense was the distribution of a controlled substance. § 1791(c). although if a sentence of imprisonment is imposed on a count involving providing or possessing a controlled substance in prison.S. – 294 – .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. amendment 525). or Trafficking. and the resulting offense level is less than level 26.1-3D1.S. amendments 202 and 203).3 (Abuse of Position of Trust or Use of Special Skill). amendment 680). a sentence imposed upon an inmate for a violation of 18 U. November 1. § 1791(b) does not require a sentence of imprisonment. (Note that 18 U.S.5 apply. 1998 (see Appendix C. that if the defendant is convicted under 18 U.

4 §2P1. 10. 1987. otherwise.4 (Trespass on Bureau of Prisons Facilities). effective November 1. See Chapter Five. (2) (3) Commentary Statutory Provision: 18 U. § 1792.S. was deleted effective November 1.November 1. – 295 – . [Deleted] Historical Note: Section 2P1. an upward departure may be warranted. Application Note: 1.C. if the offense was committed under circumstances creating a substantial risk of death or serious bodily injury to any person.3.4. 1989 (see Appendix C. Historical Note: Effective November 1. if the offense involved a major disruption to the operation of an institution. 16. Part K (Departures). §2P1. If death or bodily injury resulted. 1987. 2009 GUIDELINES MANUAL §2P1. Inciting or Attempting to Incite a Riot Involving Persons in a Facility for Official Detention (a) Base Offense Level: (1) 22. amendment 204). Engaging In.

1987. See Chapter Five. or if the offense otherwise involved a discharge. Pesticides or Other Pollutants (a) Base Offense Level: 24 Commentary Statutory Provisions: 18 U. increase by 6 levels. Knowing Endangerment Resulting From Mishandling Hazardous or Toxic Substances.1 GUIDELINES MANUAL November 1.C. ENVIRONMENT §2Q1. 33 U. Part K (Departures). continuous. increase by 4 levels. Amended effective November 1. § 1319(c)(3). – 296 – (3) . or emission of a hazardous or toxic substance or pesticide.C. 42 U.OFFENSES INVOLVING THE ENVIRONMENT 1. (B) (2) If the offense resulted in a substantial likelihood of death or serious bodily injury.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. or emission of a hazardous or toxic substance or pesticide into the environment. an upward departure may be warranted.C.§2Q1. or if cleanup required a substantial expenditure. Tampering. Application Note: 1. §2Q1. Mishandling of Hazardous or Toxic Substances or Pesticides. Unlawfully Transporting Hazardous Materials in Commerce (a) (b) Base Offense Level: 8 Specific Offense Characteristics (1) (A) If the offense resulted in an ongoing. increase by 9 levels. and Falsification. § 6928(e).1. or repetitive discharge. amendment 699). release.S. If the offense resulted in disruption of public utilities or evacuation of a community. If death or serious bodily injury resulted. increase by 4 levels. 2009 PART Q .S. Recordkeeping. § 1992(b)(3). 2007 (see Appendix C. Historical Note: Effective November 1.2. release.

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

Historical Note: Effective November 1.3 (Departures Based on Inadequacy of Criminal History Category). See §5K2. evacuation or cleanup at substantial expense has been required. 7. November 1. Part K (Departures). a departure of up to two levels either upward or downward may be warranted. See §4A1. 8. 2009 upon the harm resulting from the emission. Depending upon the nature and quantity of the substance involved and the risk associated with the offense. 1997 (see Appendix C. or to retaliate against government conduct.2 prescribes a base offense level of 8 because of the inherently dangerous nature of hazardous and toxic substances and pesticides. the duration of the offense and the risk associated with the violation. November 1. an upward departure may be warranted. an upward departure would be warranted. 1993 (see Appendix C.3 (Extreme Psychological Injury). The first four specific offense characteristics provide enhancements when the offense involved a substantive violation. Although other sections of the guidelines generally prescribe a base offense level of 6 for regulatory violations. an upward departure may be warranted.— (A) Civil Adjudications and Failure to Comply with Administrative Order. a departure would be called for. for "simple recordkeeping or reporting violations" under §2Q1. See Chapter Five.2(b)(6). Terrorism. however. Other Upward Departure Provisions. a departure of up to three levels upward or downward may be warranted. Subsection (b)(4) applies where the offense involved violation of a permit. A decrease of 2 levels is provided. – 298 – .—If the offense was calculated to influence or affect the conduct of government by intimidation or coercion. See Application Note 4 of the Commentary to §3A1.2 GUIDELINES MANUAL November 1.—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. (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. Subsection (b)(2) applies to offenses where the public health is seriously endangered. Extreme Psychological Injury. amendment 481). a departure of up to two levels either upward or downward could be warranted. 2004 (see Appendix C. 1987.4 (Terrorism). Amended effective November 1. 9. amendment 553). The last two specific offense characteristics apply to recordkeeping offenses. Depending upon the nature of the contamination involved. the quantity and nature of the substance or pollutant. release or discharge. Subsection (b)(3) provides an enhancement where a public disruption. Depending upon the nature of the risk created and the number of people placed at risk.—If the offense caused extreme psychological injury. If death or serious bodily injury results. §2Q1. 6. amendment 672). a departure of up to two levels in either direction from the offense levels prescribed in these specific offense characteristics may be appropriate.§2Q1. or where there was a failure to obtain a permit when one was required.

C. (c)(2).S. 2009 GUIDELINES MANUAL §2Q1. The term is to be broadly construed as including failure to report discharges. If a recordkeeping offense reflected an effort to conceal a substantive environmental offense. Rules. failure to file other required reports or provide necessary information. see Appendix A (Statutory Index).November 1. or if cleanup required a substantial expenditure. 407. maintain. If the offense resulted in disruption of public utilities or evacuation of a community. apply §2M6.C. 1907.S. 1319(c)(1). . § 7413. use the offense level for the substantive offense. or provide records as prescribed. and Falsification (a) (b) Base Offense Level: 6 Specific Offense Characteristics (1) (A) If the offense resulted in an ongoing. increase by 4 levels. 1908. 42 U. or emission of a pollutant. increase by 4 levels. 1415(b).3. Application Notes: 1. Tampering. or emissions where required. releases. release. or repetitive discharge. If the offense involved mishandling of nuclear material.3 §2Q1. 3.2 (Violation of Other Federal Atomic Energy Agency Statutes. and failure to prepare. For additional statutory provision(s). release. 411. In cases involving negligent conduct. The specific offense characteristics in this section assume knowing conduct. and Regulations) rather than this guideline. or if the offense otherwise involved a discharge. the giving of false information. continuous. Subsection (b)(1) assumes a discharge or emission into the environment resulting in actual environmental contamination. increase by 6 levels. Mishandling of Other Environmental Pollutants. If the offense involved a discharge without a permit or in violation of a permit. involving the handling of different quantities of materials with widely differing propensities. (B) (2) If the offense resulted in a substantial likelihood of death or serious bodily injury. §§ 403. "Recordkeeping offense" includes both recordkeeping and reporting offenses. Depending – 299 – 2. 406. increase by 11 levels. (3) (4) (5) Commentary Statutory Provisions: 33 U. a downward departure may be warranted. potentially is covered. 4. Recordkeeping. A wide range of conduct. increase by 4 levels. or emission of a pollutant into the environment.

4. Background: This section parallels §2Q1. Depending upon the nature of the contamination involved. a departure of up to two levels in either direction could be warranted. Historical Note: Effective November 1. Subsection (b)(3) provides an enhancement where a public disruption. a departure of up to two levels in either direction may be warranted. Threatening to Tamper with a Public Water System (a) Base Offense Level (Apply the greatest): (1) (2) 26. the duration of the offense and the risk associated with the violation. Tampering or Attempted Tampering with a Public Water System. Subsection (b)(4) applies where the offense involved violation of a permit. (B) any victim sustained serious bodily injury. if the offense involved (A) a threat to tamper with a public water system. an upward departure may be warranted. 2009 upon the harm resulting from the emission. increase by 4 levels. evacuation or cleanup at substantial expense has been required. 6. Depending upon the nature and quantity of the substance involved and the risk associated with the offense. 22. Amended effective November 1. Depending upon the nature of the risk created and the number of people placed at risk. 7.2 but applies to offenses involving substances which are not pesticides and are not designated as hazardous or toxic. a departure would be called for. Where a defendant has previously engaged in similar misconduct established by a civil adjudication or has failed to comply with an administrative order. a departure of up to two levels in either direction from that prescribed in these specific offense characteristics may be appropriate. Subsection (b)(2) applies to offenses where the public health is seriously endangered. 5. 1989 (see Appendix C. (3) (b) Specific Offense Characteristics (1) If (A) any victim sustained permanent or life-threatening bodily injury. and (B) any conduct evidencing an intent to carry out the threat. See §4A1. Part K (Departures). a departure of up to three levels upward or downward may be warranted.3 GUIDELINES MANUAL November 1. or where there was a failure to obtain a permit when one was required. or 16.§2Q1. §2Q1. – 300 – . See Chapter Five. If death or serious bodily injury results. 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. 1987. release or discharge. amendment 205).3 (Adequacy of Criminal History Category). 8. the quantity and nature of the substance or pollutant.

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

6. See Application Note 4 of §3A1. Amended effective November 1. 2003 (see Appendix C. apply §2B1. Departure Provisions.—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. bodily injury. an upward departure may be warranted. a downward departure may be warranted. If the offense was calculated to influence or affect the conduct of government by intimidation or coercion. or caused substantial property damage or monetary loss. or cause. Historical Note: Effective November 1. amendment 655). November 1.4 GUIDELINES MANUAL November 1. 1987. amendment 207). 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 – . was deleted by consolidation with §2Q1. 1987. apply §2D1. an upward departure would be warranted. 2009 more than one victim.4 (Terrorism).1 (Theft. or are intended to cause.— (A) Downward Departure Provision. amendment 655).5. or to retaliate against government conduct. Upward Departure Provisions. §2Q1. Amended effective November 1. Attempt or Conspiracy). If the intent was to obstruct the harvesting of timber. 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). [Deleted] Historical Note: Effective November 1. and Fraud). 3.4 effective November 1. 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. 1989 (see Appendix C. (B) §2Q1. and neither caused nor was intended to cause bodily injury. and property destruction resulted. 2003 (see Appendix C.9 (Placing or Maintaining Dangerous Devices on Federal Property to Protect the Unlawful Production of Controlled Substances. Property Destruction.—If the offense caused extreme psychological injury. In the unusual case in which such an offense did not cause a risk of death or serious bodily injury. 1989 (see Appendix C. amendment 206).

amendment 208). otherwise. increase by 2 levels.1. or (4) 6. wildlife. Background: The statute covered by this guideline proscribes a wide variety of conduct. If the offense (A) involved fish. or (ii) exceeded $5. 2001 (see Appendix C. or (B) involved a pattern of similar violations. Property Destruction. wildlife. Wildlife. and Fraud) corresponding to that amount. increase by 1 level. Historical Note: Effective November 1. or plants. or (B) otherwise created a significant risk of infestation or disease transmission potentially harmful to humans. use the greater): (A) If the market value of the fish. Amended effective November 1. 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. November 1. November 1. amendment 617). (If more than one applies. or – 303 – (2) (3) . amendment 646).2 (Aggravated Assault). * * * * * 2. wildlife. or plants that were not quarantined as required by law. increase by 2 levels. fish.C. CONSERVATION AND WILDLIFE §2Q2.November 1.000.1 (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 the number of levels from the table in §2B1. 2009 GUIDELINES MANUAL §2Q2. 1990 (see Appendix C.000.S. 2002 (see Appendix C. § 1864. Commentary Statutory Provision: 18 U. 1989 (see Appendix C. amendment 313).000 but did not exceed $5. ranging from placing nails in trees to interfere with harvesting equipment to placing anti-personnel devices capable of causing death or serious bodily injury to protect the unlawful production of a controlled substance. or plants (i) exceeded $2. Subsections (a)(1)-(a)(3) cover the more serious forms of this offense.1 circumstances manifesting extreme indifference to such risk. the offense level from §2A2. Offenses Involving Fish.

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

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

1 GUIDELINES MANUAL November 1.§2R1.000. increase by 1 level.000.000.000 More than $10.000. use as the organization’s volume of commerce the – 306 – (2) (3) . 2009 PART R .000 More than $100.Organizations (1) In lieu of the pecuniary loss under subsection (a)(3) of §8C2.000 Adjustment to Offense Level add 2 add 4 add 6 add 8 add 10 add 12 add 14 add 16.75.500.000 More than $500.000. neither the minimum nor maximum multiplier shall be less than 0.000.000. combined offense level. In a bid-rigging case in which the organization submitted one or more complementary bids. use 20 percent of the volume of affected commerce. but not less than $20.000 More than $40. adjust the offense level as follows: Volume of Commerce (Apply the Greatest) (A) (B) (C) (D) (E) (F) (G) (H) More than $1.000. (2) For purposes of this guideline. 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. If the volume of commerce attributable to the defendant was more than $1.000. When multiple counts or conspiracies are involved.000. (c) Special Instruction for Fines (1) For an individual. Bid-Rigging.000 More than $1.ANTITRUST OFFENSES §2R1. 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 More than $1. the guideline fine range shall be from one to five percent of the volume of commerce. When applying §8C2. the volume of commerce should be treated cumulatively to determine a single.000.6 (Minimum and Maximum Multipliers).000 More than $250. (d) Special Instructions for Fines .4 (Base Fine).000.1.

4(a)(3). The community service should be equally as burdensome as a fine. this factor should be considered in setting the fine within the guideline fine range. For additional statutory provision(s). Application of Chapter Three (Adjustments). If the court concludes that the defendant lacks the ability to pay the guideline fine.1 (Obstructing or Impeding the Administration of Justice) may be relevant in determining the seriousness of the defendant’s offense. It is estimated that the average gain from price-fixing is 10 percent of the selling price. 3B1.1 (Aggravating Role).2 (Mitigating Role). the defendant’s role. 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. and 3C1. 4. Application Notes: 1.1 greater of (A) the volume of commerce done by the organization in the goods or services that were affected by the violation. 2009 GUIDELINES MANUAL §2R1. 3(b). §§ 1. and the degree to which the defendant personally profited from the offense (including salary. Because the loss from price-fixing exceeds the gain. bonuses. 5.—In setting the fine for individuals. among other things. and career enhancement). see Appendix A (Statutory Index). The loss from price-fixing exceeds the gain because.1(a) should be applied to reflect the defendant’s aggravated role in the offense. 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. It is the intent of the Commission that alternatives such as community confinement not be used to avoid imprisonment of antitrust offenders.—Sections 3B1. the court should consider the extent of the defendant’s participation in the offense. In cases in which the actual monopoly overcharge appears to be either substantially more or substantially less than 10 percent. 3B1.C. 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.November 1. The fine for an organization is determined by applying Chapter Eight (Sentencing of Organizations). injury is inflicted upon consumers who are unable or for other reasons do not buy the product at the higher prices. Commentary Statutory Provisions: 15 U. if a sales manager organizes or leads the price-fixing activity of five or more participants. Considerations in Setting Fine for Individuals. it should impose community service in lieu of a portion of the fine.2. For example. 3. or (B) the largest contract on which the organization submitted a complementary bid in connection with the bid-rigging conspiracy. 2. For purposes of applying §3B1. – 307 – . 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. In selecting a fine for an organization within the guideline fine range. the court should consider both the gain to the organization from the offense and the loss caused by the organization.S.3 (Abuse of Position of Trust or Use of Special Skill). the 4-level increase at §3B1.

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

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

importation. – 310 – . 1987. If (i) subsection (a)(2) applies. increase by 4 levels.C. increase by 2 levels. 2009 PART S . and (B) the offense level for that offense can be determined. or the sexual exploitation of a minor. Laundering of Monetary Instruments. was deleted effective November 1. § 1956.3 (Relevant Conduct)). § 1957. amendment 342). or (iii) an offense involving firearms. national security.1 (Theft.1 GUIDELINES MANUAL November 1. increase by 6 levels. increase by 2 levels.S. explosives. or 8 plus the number of offense levels from the table in §2B1. otherwise. increase by 1 level. and Fraud) corresponding to the value of the laundered funds.MONEY LAUNDERING AND MONETARY TRANSACTION REPORTING Historical Note: Introductory Commentary to this Part. (2) (b) Specific Offense Characteristics (1) If (A) subsection (a)(2) applies. 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. (2) (B) (C) (3) If (A) subsection (b)(2)(B) applies. (Apply the Greatest): (A) If the defendant was convicted under 18 U.S. if (A) the defendant committed the underlying offense (or would be accountable for the underlying offense under subsection (a)(1)(A) of §1B1. If the defendant was convicted under 18 U. and (ii) the defendant was in the business of laundering funds.1. (ii) a crime of violence.§2S1.C. or distribution of a controlled substance or a listed chemical. and (B) the defendant knew or believed that any of the laundered funds were the proceeds of. §2S1. effective November 1. and (B) the offense involved sophisticated laundering. or were intended to promote (i) an offense involving the manufacture. 1990 (see Appendix C. Property Destruction.

5(c).1 Commentary Statutory Provisions: 18 U. Application Notes: 1.—In order for subsection (a)(1) to apply. to be derived from conduct constituting a criminal offense.C.3(a)(1)(A). §§ 1956. "Laundered funds" means the property. procured. monetary transaction.—For purposes of this guideline: "Crime of violence" has the meaning given that term in subsection (a)(1) of §4B1. For additional statutory provision(s). abetted. funds. or by another person at the direction or approval of an authorized Federal official. transportation. § 1956 or § 1957. (C) distribution of material involving the sexual exploitation of a minor. or a monetary instrument in violation of 18 U. application of any Chapter Three adjustment shall be – 311 – (B) (C) . financial transaction. § 1956 or § 1957. in cases in which subsection (a)(1) applies.5 (Interpretation of References to Other Offense Guidelines). (B) sexually exploiting a minor by production of sexually explicit visual or printed material. or transmission in violation of 18 U.S. Application of Subsection (a)(1).C.S. does not establish that the defendant committed. "Sexual exploitation of a minor" means an offense involving (A) promoting prostitution by a minor. commanded. Definitions. "Laundering funds" means making a transaction. "Criminally derived funds" means any funds derived. or willfully caused the underlying offense. or represented by a law enforcement officer. funds. financial transaction. aided. 2009 GUIDELINES MANUAL §2S1. 1957. or transmission. 2.1).S.C. the defendant must have committed the underlying offense or be accountable for the underlying offense under §1B1.—Notwithstanding §1B1. 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.—In cases in which subsection (a)(1) applies and there is more than one underlying offense.C. or (D) aggravated sexual abuse. or transporting or transferring property.November 1. § 1960(b)(1)(C)). without additional involvement in the underlying offense. "Minor" means an individual under the age of 18 years. induced.— (A) Multiple Underlying Offenses.S. sexual abuse. Application of Chapter Three Adjustments. see Appendix A (Statutory Index).2 (Definitions of Terms Used in Section 4B1. counseled. or abusive sexual contact involving a minor. Defendants Accountable for Underlying Offense. or possession of material involving the sexual exploitation of a minor with intent to distribute. The fact that the defendant was involved in laundering criminally derived funds after the commission of the underlying offense. monetary transaction. or monetary instrument involved in the transaction. 1960 (but only with respect to unlicensed money transmitting businesses as defined in 18 U. transfer.

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

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

and Fraud) corresponding to the value of the funds.3. § 6050I). GUIDELINES MANUAL November 1. § 1960 (but only with respect to unlicensed money transmitting businesses as defined in 18 U. Failure to File Currency and Monetary Instrument Report. Failure to Report Cash or Monetary Transactions. if the defendant was convicted under 31 U. 5322.C.S. 31 U. § 5318 or § 5318A.1 (Theft. decrease the offense level to level 6. – 314 – .C. Bulk Cash Smuggling. Part T (Offenses Involving Taxation) if the resulting offense level is greater than that determined above. (C) the funds were the proceeds of lawful activity. United States Code. and (B) committed the offense as part of a pattern of unlawful activity involving more than $100. §§ 7203 (if a violation based upon 26 U.S. 5318A(b). 5318.3 §2S1.§2S1. increase by 2 levels. or were intended to promote unlawful activity.S.S.S. or (B) the offense involved bulk cash smuggling. Knowingly Filing False Reports.000 in a 12-month period.C. 5332. Commentary Statutory Provisions: 18 U. 5331. 5324.C. 5326. § 1960(b)(1)(A) and (B)). (B) the defendant did not act with reckless disregard of the source of the funds. For additional statutory provision(s). 26 U. if subsection (a)(1) does not apply. (2) (3) (c) Cross Reference (1) If the offense was committed for the purposes of violating the Internal Revenue laws. 7206 (if a violation based upon 26 U.S. If (A) subsection (a)(2) applies and subsections (b)(1) and (b)(2) do not apply. 2009 Structuring Transactions to Evade Reporting Requirements. increase by 2 levels. see Appendix A (Statutory Index). 5316. (b) Specific Offense Characteristics (1) If (A) the defendant knew or believed that the funds were proceeds of unlawful activity.C.C.C. § 6050I). and (D) the funds were to be used for a lawful purpose. or 6 plus the number of offense levels from the table in §2B1. 5314.S. Property Destruction. Establishing or Maintaining Prohibited Accounts (a) Base Offense Level: (1) (2) 8. apply the most appropriate guideline from Chapter Two. If the defendant (A) was convicted of an offense under subchapter II of chapter 53 of title 31. §§ 5313.

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

increase by 2 levels. ESTATE TAXES. Introductory Commentary The criminal tax laws are designed to protect the public interest in preserving the integrity of the nation’s tax system. Criminal tax prosecutions serve to punish the violator and promote respect for the tax laws.1 GUIDELINES MANUAL November 1.. §2T1.e. 1987.000 in any year from criminal activity. the tax loss is the total amount of loss that was the object of the offense (i.OFFENSES INVOLVING TAXATION 1. AND CUSTOMS TAXES) Historical Note: Effective November 1. – 316 – . increase to level 12. (2) (c) Special Instructions For the purposes of this guideline -(1) If the offense involved tax evasion or a fraudulent or false return. 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. Specific Offense Characteristics (1) If the defendant failed to report or to correctly identify the source of income exceeding $10. 2009 PART T . If the resulting offense level is less than level 12. increase to level 12. INCOME TAXES. or Pay Tax.1 (Tax Table) corresponding to the tax loss. GIFT TAXES. or 6. increase by 2 levels. If the resulting offense level is less than level 12.§2T1. 1993 (see Appendix C. amendment 491). if there is no tax loss. or other document. Fraudulent or False Returns. statement. deterring others from violating the tax laws is a primary consideration underlying these guidelines. Tax Evasion. the loss that would have resulted had the offense been successfully completed). or Other Documents (a) Base Offense Level: (1) (2) (b) Level from §2T4. TOBACCO. Amended effective November 1.1. Because of the limited number of criminal tax prosecutions relative to the estimated incidence of such violations. 1987. Willful Failure to File Return. AND EXCISE TAXES (OTHER THAN ALCOHOL. Statements. If the offense involved sophisticated means. EMPLOYMENT TAXES. Supply Information. Historical Note: Effective November 1.

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

the court should use any method of determining the tax loss that appears appropriate to reasonably calculate the loss that would have resulted had the offense been successfully completed. the tax loss is treated as $29. the court should use as many methods set forth in subsection (c) and this commentary as are necessary given the circumstances of the particular case.000 of actual gross income minus $40. minus $2. §§ 7201. plus $10.S. In addition. 7203 (other than a violation based upon 26 U. § 6050I or § 7206(2)). Example 3: A defendant fails to file a tax return for a year in which his salary was $24. the presumptions in the notes under subsections (c)(1) and (c)(2) do not apply. In determining the tax loss attributable to the offense.600. Example 1: A defendant files a tax return reporting income of $40.600 of tax withheld) unless sufficient information is available to make a more accurate assessment of the tax loss. such as when indirect methods of proof are used.3(a)(2)).000 when his income was actually $90. the defendant claims $10.000.600 in income tax was withheld by his employer. In these situations.000 of reported gross income = $70." its amount is to be determined by the same rules applicable in determining any other sentencing factor.000 when his income was actually $130.000 x 28%) unless sufficient information is available to make a more accurate assessment of the tax loss.S.600 ($130. 7206 (other than a violation based upon 26 U.C. the tax loss is treated as $2.C.000 ($90. the tax loss is treated as $14. § 6050I). § 7201 and willful failure to pay cases under 26 U. § 7203. In some instances.1 GUIDELINES MANUAL November 1.S. Example 2: A defendant files a tax return reporting income of $60. 2009 Commentary Statutory Provisions: 26 U. Under the note to subsection (c)(2).000 of reported gross income = $50. If none of the methods of determining the tax loss set forth fit the circumstances of the particular case.000 x 28% = $19. For additional statutory provision(s). Although the definition of tax loss corresponds to what is commonly called the "criminal figures. Under Note (A) to subsection (c)(1). In cases involving other types of taxes. the guidelines contemplate that the court will simply make a reasonable estimate based on the available facts. see Appendix A (Statutory Index).S.§2T1.C.800. except in willful evasion of payment cases under 26 U. and $2.C. 2.000 of false tax credits) unless sufficient information is available to make a more accurate assessment of the tax loss. all conduct violating the tax laws should be considered as part of the same course of conduct or common – 318 – .000. 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. the amount of the tax loss may be uncertain.000.C. Notes under subsections (c)(1) and (c)(2) address certain situations in income tax cases in which the tax loss may not be reasonably ascertainable.000 of actual gross income minus $60. and 7207. "Tax loss" is defined in subsection (c).000 of gross income x 20% = $4. In determining the total tax loss attributable to the offense (see §1B1.200 ($24. Application Notes: 1. The tax loss does not include interest or penalties.S.000 in false tax credits. Under Note (A) to subsection (c)(1).

S. in a case in which a defendant fails to report income derived from a corporation on both the defendant’s individual tax return and the defendant’s corporate tax return.000 on the corporation’s tax return. "sophisticated means" means especially complex or especially intricate offense conduct pertaining to the execution or concealment of an offense.— For purposes of subsection (b)(2). If the offense involved both individual and corporate tax returns.November 1. has the same meaning as it has in 26 U. or foreign law.000). the sole owner of a Subchapter C corporation. state. In contrast.000 multiplied by 28%). if sufficient information is available to make a more accurate assessment of that tax rate. a "deduction" is an item that reduces the amount of taxable income. The tax loss attributable to the defendant’s corporate tax return is $34. 7. interest from savings accounts or income from a particular business activity. 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. 3. The tax loss for the offenses are added together to equal $62. A "credit claimed against tax" is an item that reduces the amount of tax directly. These examples are not intended to be exhaustive. e. as the potential benefit from the offense increases. (b) the defendant uses a consistent method to evade or camouflage income.61. or both. in and of themselves." for the purposes of this section.. the defendant. Accordingly. and does not report these funds on the defendant’s individual tax return. diverts the funds to the defendant’s own use. Furthermore. or offshore financial accounts ordinarily indicates sophisticated means. 4. the sanction necessary to deter also increases. 5.C. however. assume the use of 34% with respect to the corporate tax loss and the use of 28% with respect to the individual tax loss.F. § 61 and 26 C. are serious offenses. 2009 GUIDELINES MANUAL §2T1. if sufficient information is available to make a more accurate assessment of that tax rate.000 ($34. a greater tax loss is obviously more harmful to the treasury and more serious than a smaller one with otherwise similar characteristics. For example.1 scheme or plan unless the evidence demonstrates that the conduct is clearly unrelated.000 ($100. § 1. through the use of fictitious entities. – 319 – . and (e) the violation in each instance involves a failure to report or an understatement of a specific source of income. For purposes of this example. and (B) the unreported or diverted amount multiplied by (i) 34%. fraudulently understates the corporation’s income in the amount of $100. backdating documents or using off-shore accounts. Conduct such as hiding assets or transactions. or (ii) the tax rate for the individual tax offense. The tax loss attributable to the defendant’s individual tax return is $28. the tax loss is the aggregate tax loss from the individual tax offense and the corporate tax offense added together. 6.000 multiplied by 34%)..g.g. or (ii) the tax rate for the corporate tax offense. Sophisticated Means Enhancement. Background: This guideline relies most heavily on the amount of loss that was the object of the offense. local.000 ($100. the tax loss is the sum of (A) the unreported or diverted amount multiplied by (i) 28%. "Gross income. e.R. corporate shells. "Criminal activity" means any conduct constituting a criminal offense under federal. Tax offenses.000 + $28. (c) the violations involve the same or a related series of transactions. (d) the violation in each instance involves a false or inflated claim of a similar deduction or credit.

C. so that the tax loss in such cases will tend to be substantially understated. [Deleted] Historical Note: Section 2T1. 1990 (see Appendix C. The increase is expected to be somewhat larger for cases involving more taxes. effective November 1. Supply Information. while the other half received sentences that required them to serve an average prison term of twelve months. As a result. amendment 408). – 320 – . 1990 (see Appendix C. Failure to report criminally derived income is included as a factor for deterrence purposes. 1993 (see Appendix C. According to estimates current at the time this guideline was originally developed (1987). or Pay Tax). amendments 224-227). 1992 (see Appendix C. 2001 (see Appendix C. 1987. 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. 1990 (see Appendix C. amendments 228-230). 1998 (see Appendix C. amendment 646). 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. Criminally derived income is generally difficult to establish. 1993 (see Appendix C. 1993 (see Appendix C.2. [Deleted] Historical Note: Section 2T1. amendment 468). November 1. The adjustments in Chapter Three. §2T1. § 994(i)(2). 1989 (see Appendix C. amendment 343). 1987.1 GUIDELINES MANUAL November 1.2 (Willful Failure To File Return. Guideline sentences should result in small increases in the average length of imprisonment for most tax cases that involve less than $100. November 1. amendment 491). This guideline is intended to reduce disparity in sentencing for tax offenses and to somewhat increase average sentence length.000 in tax loss. amendment 491). amendments 219-223). Historical Note: Effective November 1. November 1. Part B (Role in the Offense) should be used to make appropriate distinctions. effective November 1.3. unusually sophisticated efforts to conceal the offense decrease the likelihood of detection and therefore warrant an additional sanction for deterrence purposes. was deleted by consolidation with §2T1. The guideline does not make a distinction for an employee who prepares fraudulent returns on behalf of his employer. was deleted by consolidation with §2T1. Although tax offenses always involve some planning.3 (Fraud and False Statements Under Penalty of Perjury). and November 1.1 effective November 1. amendment 426). amendment 343).1 effective November 1. §2T1. November 1. November 1. November 1. 1991 (see Appendix C. 1987. amendment 343). November 1. amendment 617). 1991 (see Appendix C. Amended effective November 1. 1989 (see Appendix C. November 1. amendment 491).§2T1. amendment 577). roughly half of all tax evaders were sentenced to probation without imprisonment. 1989 (see Appendix C. the number of purely probationary sentences will be reduced. 2002 (see Appendix C.S. and November 1. amended effective November 1. amended effective November 1. income taxes are underpaid by approximately $90 billion annually. 2009 Under pre-guidelines practice.

1(c) and Application Note 1 of the Commentary to §2T1.. increase by 2 levels.—For purposes of subsection (b)(2). Aiding. Supply Information. § 6050I). Willful Failure to File Return. the misstatements in all such returns will contribute to one aggregate "tax loss. assistance.1 (Tax Table) corresponding to the tax loss. Assisting. or (B) the defendant was in the business of preparing or assisting in the preparation of tax returns. For the general principles underlying the determination of tax loss. increase by 2 levels. if there is no tax loss. § 7206(2) (other than a violation based upon 26 U. or offshore financial accounts ordinarily indicates sophisticated means. The first prong applies to persons who derive a substantial portion of their income through the promotion of tax schemes. 2. the "tax loss" is the tax loss.1. "sophisticated means" means especially complex or especially intricate offense conduct pertaining to the execution or concealment of an offense. If the resulting offense level is less than level 12. 3. as defined in §2T1. In certain instances. increase to level 12. 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).November 1. Procuring. such as promotion of a tax shelter scheme. If an enhancement from this subsection applies.C. or both. or Other Documents). or Pay Tax.3 (Abuse of Position of Trust or Use of Special Skill). Sophisticated Means. If the offense involved sophisticated means. (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. Conduct such as hiding assets or transactions. Application Notes: 1.C. e. Statements. procurance or advice. or Advising Tax Fraud (a) Base Offense Level: (1) (2) Level from §2T4. resulting from the defendant’s aid. through promoting fraudulent tax shelters.S. see §2T1.S.1 (Tax Evasion.g. (2) Commentary Statutory Provision: 26 U. – 321 – . For purposes of this guideline.4. Fraudulent or False Returns." Subsection (b)(1) has two prongs. do not apply §3B1. or 6.4 §2T1. Counseling. 2009 GUIDELINES MANUAL §2T1. the defendant may advise other persons to violate their tax obligations through filing returns that find no support in the tax laws. The second prong applies to persons who regularly prepare or assist in the preparation of tax returns for profit. through the use of fictitious entities. corporate shells.

1 effective November 1. Statements. [Deleted] Historical Note: Section 2T1. §2T1. Other considerations are similar to those in §2T1. In the event that the employer not only failed to account to the Internal Revenue Service and pay over the tax.S. the offense is a form of tax evasion. 1998 (see Appendix C. Historical Note: Effective November 1. amendment 343). 1993 (see Appendix C. 1993 (see Appendix C. Failing to Collect or Truthfully Account for and Pay Over Tax (a) Base Offense Level: Level from §2T4. but also collected the tax from employees and did not account to them for it. § 7202. amendments 231 and 303). 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. Background: The offense is a felony that is infrequently prosecuted. – 322 – . amendment 491).§2T1. November 1. amendment 409). Property Destruction. November 1. was deleted by consolidation with §2T1. amendment 617). amendment 232). 2001 (see Appendix C. Subsection (b)(1) addresses such cases. November 1. or Other Documents). it is both tax evasion and a form of embezzlement. Where no effort is made to defraud the employee.1 (Tax Table) corresponding to the tax not collected or accounted for and paid over.C. Amended effective November 1. Application Note: 1. 1987. November 1. (b) Commentary Statutory Provision: 26 U.5. 2009 Background: An increased offense level is specified for those in the business of preparing or assisting in the preparation of tax returns and those who make a business of promoting tax fraud because their misconduct poses a greater risk of revenue loss and is more clearly willful. 1987.1. 1991 (see Appendix C. Historical Note: Effective November 1. The failure to collect or truthfully account for the tax must be willful. apply §2B1.5 (Fraudulent Returns. §2T1. and is treated as such in the guidelines.1 (Theft. amendment 491). 1989 (see Appendix C.6. 1987. November 1. 1990 (see Appendix C. 1989 (see Appendix C. Amended effective November 1. November 1.4 GUIDELINES MANUAL November 1. and Fraud) if the resulting offense level is greater than that determined above. effective November 1. as must the failure to pay. amendment 617). amendment 577). 2001 (see Appendix C.

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

Application Notes: 1. 699 F. 3. Otherwise. 1957).4 (whichever guideline most closely addresses the harm that would have resulted had the conspirators succeeded in impeding. . denied. an offense involving a "tax protest" group that encourages persons to violate the tax laws. or Defeat Tax (a) Base Offense Level (Apply the greater): (1) (2) (b) Offense level determined from §2T1. Do not. obstruct. who merely evade taxes jointly or file a fraudulent return. or an offense involving the marketing of fraudulent tax shelters or schemes). Carruth.4. . or collection of revenue. The base offense level is the offense level (base offense level plus any applicable specific offense characteristics) from §2T1. computation. 1984). Specific offense characteristics from §2T1. 355 U. obstructing and defeating . 1038 (1984). GUIDELINES MANUAL November 1. cert. (2) Commentary Statutory Provision: 18 U. If the conduct was intended to encourage persons other than or in addition to co-conspirators to violate the internal revenue laws or impede.9(b) are to be applied to the base offense level determined under §2T1.. It does not apply to taxpayers. 247 F. This section applies to conspiracies to "defraud the United States by impeding. 723 F. other than the participants directly involved in the offense.S." United States v.C.g. or 10.9. Browning.9(a)(1) or (2). Specific Offense Characteristics If more than one applies. denied. 4.1 or §2T1.2d 908.2d 1544 (11th Cir. See also United States v.§2T1. . such as a husband and wife.9 §2T1. as appropriate. assessment. cert. Impair. or defeat the ascertainment. 464 U. to violate the tax laws (e. obstructing. apply this adjustment if an adjustment from §2T1. Obstruct.S. 1983). or defeating the Internal Revenue Service) if that offense level is greater than 10. increase by 4 levels. impair. the base offense level is 10. 2009 Conspiracy to Impede. § 371. or collection of revenue. impair. 924 (1958). or defeat the ascertainment.1 or §2T1. computation. – 324 – 2. use the greater: (1) If the offense involved the planned or threatened use of violence to impede. 1021 (9th Cir. United States v. 915 (2d Cir. obstruct. the collection of revenue. increase by 2 levels.2d 1017. Klein. impairing. however.S.4(b)(1) is applied. impairing. Subsection (b)(2) provides an enhancement where the conduct was intended to encourage persons. assessment.

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

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

November 1. For additional statutory provision(s). 3. 2009 GUIDELINES MANUAL §2T3.—For purposes of subsection (b)(1). Especially when such items are harmful or protective quotas are in effect. limited. 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. 1708(b). 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.000. "sophisticated means" means especially complex or especially intricate offense conduct pertaining to the execution or – 327 – 2. 1465. or 5. Application Notes: 1. increase by 2 levels. the "tax loss" is the amount of the duty. 1915. §§ 496.000. 3907. (b) Specific Offense Characteristic (1) If the offense involved sophisticated means. In such instances. Evading Import Duties or Restrictions (Smuggling).S. or 4. might be considered. 1586(e). see Appendix A (Statutory Index). Commentary Statutory Provisions: 18 U. if the tax loss exceeded $100 but did not exceed $1.C. 1464. 19 U. §§ 283. Particular attention should be given to those items for which entry is prohibited. 1436. increase to level 12. apply that offense guideline if the resulting offense level is greater than that determined above. 551.1. if the tax loss did not exceed $100. Receiving or Trafficking in Smuggled Property (a) Base Offense Level: (1) The level from §2T4.S.C. the duties evaded on such items may not adequately reflect the harm to society or protected industries resulting from their importation. if the tax loss exceeded $1. (2) (3) For purposes of this guideline. 547. (c) Cross Reference (1) If the offense involves a contraband item covered by another offense guideline. such as the increase in market value due to importation. If the resulting offense level is less than level 12.1 (Tax Table) corresponding to the tax loss. an upward departure may be warranted. 541-545. Such conduct generally poses a lesser threat to revenue collection. . or restricted.1 §2T3. Sophisticated Means. A sentence based upon an alternative measure of the "duty" evaded. 548. 550.

1998 (see Appendix C.2 (Receiving or Trafficking in Smuggled Property).000 More than $400. 1987. or both. November 1. amendment 453). amended effective November 1. Historical Note: Effective November 1.000. November 1. amendment 235).000.000. amendment 577). November 1.2. amendment 685). 1991 (see Appendix C. 2006 (see Appendix C. 1989 (see Appendix C. 1992 (see Appendix C. amendment 410). [Deleted] Historical Note: Section 2T3. amendment 236) and November 1.000 More than $2. corporate shells.500. TAX TABLE §2T4. Amended effective November 1. November 1. 1989 (see Appendix C.000 or less More than $2.500 More than $30. Tax Table Tax Loss (Apply the Greatest) (A) (B) (C) (D) (E) (F) (G) (H) (I) (J) (K) (L) (M) (N) (O) (P) $2. Amended effective November 1. 1989 (see Appendix C. Historical Note: Effective November 1. 2001 (see Appendix C.000 Offense Level 6 8 10 12 14 16 18 20 22 24 26 28 30 32 34 36. November 1. amendment 410).000 More than $400. §2T3. * * * * * 4. 2009 concealment of an offense.000 More than $200. amendment 491).000 More than $80. 1993 (see Appendix C. amendment 617). or offshore financial accounts ordinarily indicates sophisticated means.000.000.000 More than $200.000 More than $5. 1987. 2003 (see Appendix C. 2003 (see Appendix C. 653). 1991 (see Appendix C. amendment 453). November 1.000.000 More than $50. November 1.§2T3.000 More than $20. January 25. was deleted by consolidation with §2T3. November 1. amendment 617). through the use of fictitious entities. 1987.1 GUIDELINES MANUAL November 1.000. 1992 (see Appendix C.000 More than $100. – 328 – . amendment 647). effective November 1.000 More than $12.000 More than $1.1 effective November 1. 2001 (see Appendix C. Conduct such as hiding assets or transactions.000 More than $7. amendment 237).1.

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

4. 2A3. 2D1. § 1992(a)(1)-(a)(7).C.C. § 46505. 2D2. 2D1. 2D1. 2C1.9.S. 2D2. 2D1. 2A3. 49 U. 2A3.1. conspiracies. see Appendix A (Statutory Index). (a)(9). 2D1.1.13. § 1363.§2X1.12.5.2. § 1362.2. 2D1. and 18 U.1. § 2340A.S. § 60123(b). 2D2. 2009 Any of the following offenses. Application Notes: 1.C. 2D1.5.2. §§ 371. § 81.1 (A) GUIDELINES MANUAL November 1.1. 2D1.S.S.S. 2D1. – 330 – . 2D1. 18 U. §§2D1.11.8. Offense guidelines that expressly cover conspiracies include: §2A1. § 46504.2.4. 18 U. a federal crime of terrorism as defined in 18 U. § 2332b(g)(5): 18 U. 2D3. 2D2.11.3. and 49 U.C.1.5. Offense guidelines that expressly cover attempts include: §§2A2. For additional statutory provision(s).C. 2A4.S. §2E5.C.S.10.S.C.13. 2D1.S. 2D3.C.S. 2D1. 2D3. 2D1. Commentary Statutory Provisions: 18 U. 2D1. 49 U.2. 2D1.C. §2Q1.10.2.7. 2D1.C.1.2. § 2339A. 18 U. 2282B.C.7. §2M6. and solicitations are expressly covered by other offense guidelines. 2D1.C.2. § 2332a. (B) Any of the following offenses: 18 U.S. 2D3.S.1. 18 U. 2A5.1.S.6.1. §2N1.12. 2D1. (a)(10). 18 U.6. 18 U. Certain attempts.8.C.1. or was intended to promote. 2D1. 2271. §§2D1. 372.1. §§2C1.C. 2D1.1. § 930(c).2. 2A3.S. if such offense involved.1. § 32.9. 2282A.

(b)(2). In certain cases.1 §2H1. means the offense that the defendant was convicted of soliciting. Sometimes.1. because such factors would be speculative. For example.000 minus 3 levels. But the only specific offense characteristics from the guideline for the substantive offense that apply are those that are determined to have been specifically intended or actually occurred. or the offense level for the theft of $30. whichever is greater.1(b)(1).2. hostage taking. with the enhancement for possession of a weapon. 2. of the intended offense. the participants may have completed (or have been about to complete but for apprehension or interruption) all of the acts necessary for the successful completion of part. but not all. §2E5. For example. or obtaining a large sum of money. Speculative specific offense characteristics will not be applied. 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). 4. 2009 GUIDELINES MANUAL §2X1. If it was established that the defendants actually intended to physically restrain the teller. the value of the items that the defendant attempted to steal would be considered.1. attempting. no reduction of the offense level is warranted. or conspiring to commit.9. where the intended offense was the theft of $800. §§2C1.1(b)(1). The offense level would simply reflect the level applicable to robbery of a financial institution.1." as used in this guideline. (b)(2). however.000. the offense level is the offense level for the theft of $800. In such cases. In the case of multiple counts that are not closely related counts.1(a). 2C1. the arrest occurs well before the defendant or any co- 3. If the substantive offense is not covered by a specific guideline. Offense guidelines that expressly cover solicitations include: §2A1. "Substantive offense. the offense level ordinarily would not include aggravating factors regarding possible injury to others.000 but the participants completed (or were about to complete) only the acts necessary to steal $30. or (b)(3)(A)). or (b)(3)(A) applies is determined separately for each count.1 (Other Offenses). Background: In most prosecutions for conspiracies or attempts. if two defendants are arrested during the conspiratorial stage of planning an armed bank robbery.000. §2T1. see §2X5. 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 §2X1.5. 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. the specific offense characteristic for physical restraint would be added.November 1. In an attempted theft. Under §2X1. whether the 3-level reduction under §2X1. the base offense level will be the same as that for the substantive offense. In such cases. discharge of a weapon.1. §2M6. – 331 – .

Amended effective November 1. 2001 (see Appendix C. Under such circumstances. amendments 238-242).1. November 1. November 1. 2007 (see Appendix C. amendment 655).2) may be applicable. November 1. amendments 444 and 447). November 1. amendments 699 and 700). Commentary Statutory Provisions: 18 U. 2002 (see Appendix C. 1989 (see Appendix C. 1987. amendments 311 and 327). amendment 700). Definition.S. Historical Note: Effective November 1. § 2. amendment 637). ACCESSORY AFTER THE FACT Accessory After the Fact (a) Base Offense Level: §2X3. November 1.C. amendment 359). 2339.1 GUIDELINES MANUAL November 1. 2339C(a)(1)(A).1(b)(1) or (2). Aiding and Abetting The offense level is the same level as that for the underlying offense. * * * * * 2. amendment 411)."underlying offense" means the offense the defendant is convicted of aiding or abetting. 1987. November 1.§2X1. 2002 (see Appendix C. * * * * * 3. 1990 (see Appendix C. 18 U. 1988 (see Appendix C. 2009 conspirator has completed the acts necessary for the substantive offense. November 1.1. amendment 496). Application Note: 1. November 1. November 1. 1992 (see Appendix C. 2003 (see Appendix C. November 1. §§ 2. This section provides that aiding and abetting the commission of an offense has the same offense level as the underlying offense. November 1.C. or in the case of a violation of 18 U. 1990 (see Appendix C. Amended effective January 15. 2004 (see Appendix C. amendment 633). 2284. 1993 (see Appendix C. November 1. 2339A. Historical Note: Effective November 1. "underlying offense" means the offense the defendant is convicted of having materially supported or provided or collected funds for. amendment 637). An adjustment for a mitigating role (§3B1.C.S. Background: A defendant convicted of aiding and abetting is punishable as a principal. a reduction of 3 levels is provided under §2X1. 2007 (see Appendix C.S. prior to or during its commission. § 2339A or § 2339C(a)(1)(A). AIDING AND ABETTING §2X2.—For purposes of this guideline. amendment 669). amendment 42). 1991 (see Appendix C. – 332 – .

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

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

Application of §2X5.3 (Imposition of a Sentence on a Defendant Subject to an Undischarged Term of Imprisonment). In General. §5E1.S. The sentencing guidelines apply to convictions under 18 U. §5D1.2. Part H (Specific Offender Characteristics).C.S. Convictions under 18 U. Part B (Plea Agreements). apply §2X5. Upward Departure Provision. Part F (Sentencing Options). § 13 (Assimilative Crimes Act) – 335 – .C. § 1841(b) and that results in the death of. Chapter Six.S. if the defendant committed aggravated sexual abuse against the unborn child’s mother and it caused the death of the child in utero. if so.4 (Forfeiture). Chapter Five.C.S. i. Chapter Six. 2009 GUIDELINES MANUAL §2X5.2 (Term of Supervised Release).S. §5E1. Part K (Departures). the conduct of which the defendant is convicted that violates a specific provision listed in 18 U. § 1841(a)(1).S.—If the defendant is convicted under 18 U.— (A) In General. or serious bodily injury to. the provisions of 18 U. the specific guidelines that have been promulgated cover the type of criminal behavior that most such offenses proscribe. §5D1.—Guidelines and policy statements that can be applied meaningfully in the absence of a Chapter Two offense guideline include: §5B1.C. For example. the child in utero. § 3553 control. In a case in which there is no sufficiently analogous guideline. are not listed in the Statutory Index or in any of the lists of Statutory Provisions that follow each offense guideline.—This guideline applies only to felony offenses not referenced in Appendix A (Statutory Index). Attempt to Commit Criminal Sexual Abuse).C.. Background: Many offenses.—For offenses under 18 U. the Chapter Two offense guideline that applies is the guideline that covers the conduct the defendant is convicted of having engaged in.November 1.1 Commentary Statutory Provision: 18 U. Part J (Relief from Disability).3 (Special Assessments). 2.e. Chapter Five. § 1841(a)(1). §5G1. Chapter Five. a child in utero at the time of the offense of conviction. (B) 3. §5D1. or bodily injury to.3 (Conditions of Probation). Part A (Sentencing Procedures). an upward departure may be warranted if the offense level under the applicable guideline does not adequately account for the death of. § 1841(a)(1). Application Notes: 1.C.2 (Class A Misdemeanors (Not Covered by Another Specific Offense Guideline)). The court is required to determine if there is a sufficiently analogous offense guideline.1 (Imposition of a Term of Supervised Release). to apply the guideline that is most analogous. § 1841(a)(1). Chapter Five. the applicable Chapter Two guideline would be §2A3.S. §5E1. and. Nonetheless.C.1 (Criminal Sexual Abuse. especially assimilative crimes.1 (Restitution).3 (Conditions of Supervised Release). For Class A misdemeanor offenses that have not been referenced in Appendix A.

§ 1153 (Indian Major Crimes Act).C. 2009 and 18 U. November 1. §§ 1129(a).S. OFFENSES INVOLVING USE OF A MINOR IN A CRIME OF VIOLENCE Historical Note: Effective November 1. amendment 569). 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. November 1. 1987. 2006 (see Appendix C. amendment 412). § 3551(a). In General. § 25. amendment 721).§2X5. see 18 U. 14133. 42 U. Amended effective November 1. amendment 685). amendment 674). * * * * * 6. – 336 – .1 GUIDELINES MANUAL November 1. amendment 699). amendment 685). Historical Note: Effective November 1.C.—This guideline applies to Class A misdemeanor offenses that are specifically referenced in Appendix A (Statutory Index) to this guideline. 2006 (see Appendix C. amendment 43).S. 1801.2. 1988 (see Appendix C.C. 2004 (see Appendix C. as amended by section 1602 of Public Law 101-647. November 1. Commentary Statutory Provision: 18 U.S.1. §§ 1365(f).S. This guideline also applies to Class A misdemeanor offenses that have not been referenced in Appendix A. §2X5. 49 U. 1997 (see Appendix C. Class A Misdemeanors (Not Covered by Another Specific Offense Guideline) (a) Base Offense Level: 6 Commentary Statutory Provisions: 18 U.C. Amended effective June 15. § 31310. Application Note: 1.S. Historical Note: Effective November 1.C. §2X6.S. 2007 (see Appendix C. 2008 (see Appendix C. November 1. Do not apply this guideline to a Class A misdemeanor that has been specifically referenced in Appendix A to another Chapter Two guideline. 1991 (see Appendix C.

amendment 700). increase to level 16. 2004 (see Appendix C. * * * * * 7.1. § 555.November 1. OFFENSES INVOLVING BORDER TUNNELS AND SUBMERSIBLE AND SEMI-SUBMERSIBLE VESSELS Historical Note: Effective November 1. if the defendant was convicted under 18 U. or 8.S.— (A) In a case in which the defendant is convicted under both 18 U. amendment 728). Border Tunnels and Subterranean Passages (a) Base Offense Level: (1) If the defendant was convicted under 18 U. 4 plus the offense level applicable to the underlying smuggling offense. § 25 and the underlying crime of violence. (2) (3) Commentary Statutory Provision: 18 U. Definition. "underlying crime of violence" means the crime of violence as to which the defendant is convicted of using a minor.C.S. 2007 (see Appendix C.C.1 Application Notes: 1. 16.S.2.—For purposes of this guideline.2 (Groups of Closely Related Counts). Multiple counts involving the use of a minor in a crime of violence shall not be grouped under §3D1. amendment 674). Inapplicability of §3B1. if the defendant was convicted under 18 U.C. If the resulting offense level is less than level 16.4.S. § 555(c). 2. the counts shall be grouped pursuant to subsection (a) of §3D1.S. § 555(a). 2009 (see Appendix C. 2009 GUIDELINES MANUAL §2X7. – 337 – .—Do not apply the adjustment under §3B1.C. § 555(b). §2X7. (B) Historical Note: Effective November 1. Multiple Counts. 3. Amended effective November 1.4 (Using a Minor to Commit a Crime).C.

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

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

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

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

amendment 44). November 1. or similar 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. (B) Definitions. custody with no significant physical restraint. For example. provides medical services to prisoners in a prison health facility. or volunteer. (ii) an individual employed by a prison as a work detail supervisor.—If the official victim is an exceptionally high-level official. but not including an inmate) authorized to act on behalf of a prison or correctional facility. §3A1. Upward Departure Provision. 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. Historical Note: Effective November 1. 2. For example. 5. Commentary Application Notes: 1. community treatment center.. 2004 (see Appendix C. 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". independent contractor. "halfway house". or where the unlawful restraint of a victim is an element of the offense itself (e. While subsection (c) may apply in connection with a variety of offenses that are not by nature targeted against official victims.1 (Application Instructions). 1987. this – 342 – . such as the President or the Vice President of the United States. 1992 (see Appendix C.. increase by 2 levels. (ii) is physically away from the prison or correctional facility while on a pass or furlough. or (iii) is in custody at a community corrections center. 2009 control of a prison or other correctional facility. this enhancement would be applicable to any of the following: (i) an individual employed by a prison as a corrections officer. 2002 (see Appendix C. 1988 (see Appendix C.g. Restraint of Victim If a victim was physically restrained in the course of the offense. amendment 663). and (iii) a nurse who. Do not apply this adjustment where the offense guideline specifically incorporates this factor. November 1.3. "Prison official" means any individual (including a director. employee. i.§3A1.e. November 1. "Physically restrained" is defined in the Commentary to §1B1.—For purposes of subsection (c): "Custody or control" includes "non-secure custody". officer. "Substantial risk of serious bodily injury" includes any more serious injury that was risked. amendment 455). an upward departure may be warranted due to the potential disruption of the governmental function. November 1. amendments 246-248).2 GUIDELINES MANUAL November 1. as well as actual serious bodily injury (or more serious injury) if it occurs. Amended effective January 15. under contract. amendment 643). 1989 (see Appendix C.

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

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

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

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

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

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

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

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

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

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

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

. §2X3. in respect to a presentence investigation. not amounting to a material falsehood.1 (Misprision of Felony).1 (Accessory After the Fact). or information. lying to a probation or pretrial services officer about defendant’s drug use while on pretrial release..2(c). or sentencing of the obstruction offense itself (e.9 (Payment to Witness). See Application Note 8. as used in this section. means evidence. 5.1 (Acceptance of Responsibility)). (b) (c) (d) (e) 6. fact. if the defendant threatened a witness during the course of the prosecution for the obstruction offense). §2J1. although such conduct may be a factor in determining whether to reduce the defendant’s sentence under §3E1. not under oath. Inapplicability of Adjustment in Certain Circumstances.. Bribery of Witness). 18 U. §2J1. providing incomplete or misleading information. this adjustment will apply and increase the offense level for the underlying offense (i.1 (Acceptance of Responsibility). below. or information that. "Material" Evidence Defined.—If the defendant is convicted both of an obstruction offense (e. § 1621 (Perjury generally)) and 7. § 3146 (Penalty for failure to appear). §2J1.§3C1. this adjustment is not to be applied to the offense level for that offense except if a significant further obstruction occurred during the investigation. statement. Examples of Conduct Ordinarily Not Covered. prosecution..—"Material" evidence. fact. except where such conduct actually resulted in a significant hindrance to the investigation or prosecution of the instant offense.C. prosecution. statement.S.S. or §2X4. would tend to influence or affect the issue under determination. 8. However. avoiding or fleeing from arrest (see. – 354 – . unless Application Note 4(g) above applies. §3C1. if the defendant is convicted of a separate count for such conduct.g.1 GUIDELINES MANUAL November 1. §3E1. Grouping Under §3D1. if believed.e.3 (Perjury or Subornation of Perjury.C.—If the defendant is convicted of an offense covered by §2J1.1 (Contempt).5 (Failure to Appear by Material Witness). or sentencing of the instant offense where there is a separate count of conviction for such conduct. §2J1.g. to law enforcement officers. 18 U. however. making false statements.2 (Obstruction of Justice).—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.2 (Reckless Endangerment During Flight)).g. 2009 This adjustment also applies to any other obstructive conduct in respect to the official investigation.6 (Failure to Appear by Defendant). the offense with respect to which the obstructive conduct occurred). 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. §2J1.

Do not apply this enhancement where the offense guideline in Chapter Two. November 1. However. amendment 457). 9.2 an underlying offense (the offense with respect to which the obstructive conduct occurred).2 (Groups of Closely Related Counts). and 582). Amended effective November 1. 2002 (see Appendix C. 1997 (see Appendix C. 1989 (see Appendix C. For the purposes of this guideline. November 1. amendment 496). amendment 415). 2004 (see Appendix C. "Reckless" is defined in the Commentary to §2A1. 4. induced.—Under this section. the count for the obstruction offense will be grouped with the count for the underlying offense under subsection (c) of §3D1. "Another person" includes any person. procured. 2009 GUIDELINES MANUAL §3C1.2. induced. November 1.3(a)(1)(A) Conduct. amendment 693). "During flight" is to be construed broadly and includes preparation for flight. the defendant is accountable for his own conduct and for conduct that he aided or abetted. November 1. or willfully caused. this adjustment also is applicable where the conduct occurs in the course of resisting arrest. or the offense level for the obstruction offense. amendment 637). 2. 1991 (see Appendix C. increase by 2 levels. November 1. 581. 1992 (see Appendix C. counseled. amendments 251 and 252). an upward departure above the 2-level increase provided in this section may be warranted. procured. 2006 (see Appendix C. 1993 (see Appendix C. November 1. – 355 – . commanded. amendment 347). Historical Note: Effective November 1. or willfully caused. amendments 579.November 1. commanded. the defendant is accountable for his own conduct and for conduct that he aided or abetted. Therefore. 3. "reckless" means that the conduct was at least reckless and includes any higher level of culpability. counseled. November 1. 1998 (see Appendix C. November 1.4 (Involuntary Manslaughter). 5. 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. 1990 (see Appendix C. except a participant in the offense who willingly participated in the flight. or another adjustment in Chapter Three. amendment 566). §3C1. 1987. amendment 674). 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. Under this section. Accountability for §1B1. Commentary Application Notes: 1. whichever is greater. results in an equivalent or greater increase in offense level solely on the basis of the same conduct. November 1. where a higher degree of culpability was involved.

C. 2006 (see Appendix C.. amendment 734). For example. a sentence of 30 months for the underlying offense plus 6 months under 18 U. Similarly. Historical Note: Effective November 1. 1991 (see Appendix C. Therefore. Amended effective November 1.C. Historical Note: Effective November 1. if the applicable adjusted guideline range is 30-37 months and the court determines a "total punishment" of 36 months is appropriate. an upward departure may be warranted. and the sentence of imprisonment imposed under 18 U. a sentence of imprisonment must be imposed in addition to the sentence for the underlying offense. in order to comply with the statute. Part K (Departures). GUIDELINES MANUAL November 1. § 3147 would satisfy this requirement. Amended effective November 1.S.2 6. the court.C.§3C1. 1990 (see Appendix C. including. after appropriate sentencing notice.e.3. The court will have to ensure that the "total punishment" (i. the adjustment provided by the enhancement in this section.S. 2009 (see Appendix C.S. § 3147 must run consecutively to any other sentence of imprisonment. if the applicable adjusted guideline range is 30-37 months and the court determines a "total punishment" of 30 months is appropriate.S. § 3147 applies. §3C1. November 1.1 (Application Instructions)). amendment 347). 2009 If death or bodily injury results or the conduct posed a substantial risk of death or bodily injury to more than one person. Background: An enhancement under 18 U.S.C. See Chapter Five.C. § 3147 would satisfy this requirement. § 3147) is in accord with the guideline range for the offense committed while on release. Under 18 U.C. the sentence for the offense committed while on release plus the statutory sentencing enhancement under 18 U. while at the same time complying with the statutory requirement. Commentary Application Note: 1. § 3147. amendment 457). amendment 416). 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. 1992 (see Appendix C. increase the offense level by 3 levels. a sentence of 24 months for the underlying offense plus 6 months under 18 U.C. should divide the sentence on the judgment form between the sentence attributable to the underlying offense and the sentence attributable to the enhancement. when a defendant is sentenced for an offense committed while released in connection with another federal offense.S. – 356 – . § 3147 applies. amendment 684).S. This guideline enables the court to determine and implement a combined "total punishment" consistent with the overall structure of the guidelines.

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

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

2009 GUIDELINES MANUAL §3D1. amendment 707).2. 1987. 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.—For purposes of sentencing multiple counts of conviction. – 359 – .3.5 the following: (1) Any count for which the statute (A) specifies a term of imprisonment to be imposed. § 1028A should be imposed. and (B) requires that such term of imprisonment be imposed to run consecutively to any other term of imprisonment.4.. or (B) contained in different indictments or informations for which sentences are to be imposed at the same time or in a consolidated proceeding. Determine the offense level applicable to each Group by applying the rules specified in §3D1. drug trafficking.1. fraud. Determine the combined offense level applicable to all Groups taken together by applying the rules specified in §3D1.S. independent instances of assault or robbery). In General.C.. § 1028A. (2) (3) (b) Exclude from the application of §§3D1..November 1. Procedure for Determining Offense Level on Multiple Counts (a) When a defendant has been convicted of more than one count. add the numerical quantities and apply the pertinent offense guideline. Amended effective November 1. including any specific offense characteristics for the conduct taken as a whole.g. theft.2(a).C. (2) When offenses are closely interrelated. 1989 (see Appendix C. 2007 (see Appendix C. Sentences for such counts are governed by the provisions of §5G1. counts can be (A) contained in the same indictment or information. November 1. (3) As to other offenses (e. Historical Note: Effective November 1. Any count of conviction under 18 U.S.g.g. or otherwise contain provisions dealing with repetitive or ongoing misconduct (e.2-3D1. group them together for purposes of the multiple-count rules.1 involved (e.2 (Sentencing on Multiple Counts of Conviction) for guidance on how sentences for multiple counts of conviction under 18 U. firearms dealing). 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. many environmental offenses). See Application Note 2(B) of the Commentary to §5G1. (2) Commentary Application Notes: 1. §3D1. and use only the offense level for the most serious offense in that group. amendment 121).

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

1.6.3. 2T1. 2T1.1. 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. 2B3. §§2D1. 2H4.1. Specifically excluded from the operation of this subsection are: all offenses in Chapter Two.1. 2G3.2. 2D2. §§2D2.1. the guideline applicable to another of the counts. Exclusion of an offense from grouping under this subsection does not necessarily preclude grouping under another subsection. (d) – 361 – .11.2.3.1.1. 2B4.3. §§2C1.1.1.1.1. 2T2. §2Q2. §2X6. §§2B1. §§2M2. When the offense level is determined largely on the basis of the total amount of harm or loss. 2M3.4. 2D1. or some other measure of aggregate harm. 2M3.5).1. 2H2.1. For multiple counts of offenses that are not listed. 2B2. §§2E1. 2G2. 2L2. 2T3. Offenses covered by the following guidelines are to be grouped under this subsection: §2A3. 2D1.5. 2B6.5.2 (c) When one of the counts embodies conduct that is treated as a specific offense characteristic in. 2B3.3.1. §§2P1. 2B3.1.1.1. 2E5.2. 2C1.3.1.1.5.9.2. 2M3. 2T1. 2S1. grouping under this subsection may or may not be appropriate. 2P1. 2B1.1.1.13.9.1. §§2L2.2. 2L2. Part A (except §2A3. 2009 GUIDELINES MANUAL §3D1.7. §§2G1. 2D1.5. or other adjustment to. 2B5.2. §§2B2. §§2H1.1.1. §2N3. 2M2.2.1. §2R1. §§2L1.3.November 1. §2C1. §§2T1. 2M3. 2B1. 2B5. §§2G2.4.3.4.3. 2M3.8. §§2E4. 2T1.1.1. 2M3. 2E2.4.2. 2P1. 2E1.1.1. 2D2.5.1. the quantity of a substance involved. or if the offense behavior is ongoing or continuous in nature and the offense guideline is written to cover such behavior. §2K2. §§2S1.1. 2D1. 2C1.1.3.5.

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

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

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

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

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

3 3 1/2 . Disregard any Group that is 9 or more levels less serious than the Group with the highest offense level. The additional factor of property loss ordinarily can be taken into account adequately within the guideline range for rape. that data showed to be significant in actual practice.1) includes the most common aggravating factors. 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 .4. including injury. amendment 674). Summary examples of the application of these rules are provided at the end of the Commentary to this Part.5 More than 5 Increase in Offense Level none add 1 level add 2 levels add 3 levels add 4 levels add 5 levels. 2009 GUIDELINES MANUAL §3D1. 2004 (see Appendix C. amendments 257 and 303). 2001 (see Appendix C. November 1. all of the counts are grouped together under §3D1.5 (Property Damage or Loss). 1989 (see Appendix C. will not. Sometimes the rule specified in this section may not result in incremental punishment for additional criminal acts because of the grouping rules. 1987. amendment 617). an exceptionally large property loss in the course of the rape would provide grounds for an upward departure. For example. if the defendant commits forcible criminal sexual abuse (rape). Historical Note: Effective November 1. See §5K2. The robbery. November 1. which is fairly wide. Such Groups will not increase the applicable offense level – 367 – (b) (c) . Count as one-half Unit any Group that is 5 to 8 levels less serious than the Group with the highest offense level. The aggravated assault will increase the guideline range for the rape.November 1.4 characteristics that require increasing the offense level to a certain minimum may affect the outcome. 4. Background: This section provides rules for determining the offense level associated with each Group of Closely Related Counts.2. aggravated assault. In determining the number of Units for purposes of this section: (a) Count as one Unit the Group with the highest offense level. §3D1. and robbery. Count one additional Unit for each Group that is equally serious or from 1 to 4 levels less serious. However. This is because the offense guideline for rape (§2A3. however. Amended effective November 1. all against the same victim on a single occasion.

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

Commentary This section refers the court to Chapter Five (Determining the Sentence) in order to determine the total punishment to be imposed based upon the combined offense level. The combined offense level is 28 pursuant to §3D1. the combined offense level for the drug offenses is 26. §3D1. Because the conduct constituting the bribery offense is accounted for by §3C1. – 369 – 2.1. 2009 GUIDELINES MANUAL §3D1. and the third count translates into 75 kilograms of marihuana. a more thorough. The combined offense level is subject to adjustments from Chapter Three. In each of the first three robberies.November 1. Historical Note: Effective November 1.000 was taken and a firearm was displayed. In addition. 1. illustrate the operation of the guidelines for multiple counts. it becomes part of the same Group as the drug offenses pursuant to §3D1.5 §3D1. Defendant C was convicted on four counts: (1) distribution of 230 grams of cocaine. because the offense level for bribery (22) is less than the offense level for the drug offenses (28). 1987. . the offense level was therefore 28.1. The combined offense level is 31. Each would represent a distinct Group. The first count translates into 46 kilograms of marihuana. Altogether there are 2 1/2 Units. the offense level was 22 (20 plus a 2-level increase because a financial institution was robbed) (§2B3.000 to avoid prosecution. The total is 151 kilograms of marihuana. (2) distribution of 150 grams of cocaine. each charging robbery of a different bank. In the fourth robbery $12. As the first three counts are 6 levels lower than the fourth. Part B (Career Offenders and Criminal Livelihood). * * * * * Illustrations of the Operation of the Multiple-Count Rules The following examples. Exporting. The examples are discussed summarily.1 (Obstructing or Impeding the Administration of Justice).4.1(b)).5.2. because of the attempted bribe of the DEA agent. Part E (Acceptance of Responsibility) and Chapter Four. Under §2D1. or Trafficking)).3(a). step-by-step approach is recommended until the user is thoroughly familiar with the guidelines.1 (Unlawful Manufacturing. drawn from presentence reports in the Commission’s files. this offense level is increased by 2 levels to 28 under §3C1. each of the first three represents one-half unit for purposes of §3D1. converted to marihuana equivalents (using the Drug Equivalency Tables in the Commentary to §2D1. The combined offense level for drug offenses is determined by the total quantity of drugs. (4) offering a DEA agent $20.2(c). the second count translates into 30 kilograms of marihuana. (3) distribution of 75 grams of heroin. and the offense level for the most serious (28) is therefore increased by 3 levels under the table. Determining the Total Punishment Use the combined offense level to determine the appropriate sentence in accordance with the provisions of Chapter Five. Defendant A was convicted on four counts. Importing.

The counts were as follows: (1) The defendant received $27. Historical Note: Effective November 1.§3D1. November 1. and Fraud).5 3. 1987. GUIDELINES MANUAL November 1. The mail fraud counts are covered by §2B1. amendment 737). the combined offense level is 16. (2) The defendant received $12. 2009 (see Appendix C.1. amendment 417). The bribery counts are covered by §2B4. 2001 (see Appendix C.1 (assuming the application of the "sophisticated means" enhancement in §2B1.1(b)(9)) or §2B4. November 1. 1991 (see Appendix C. Amended effective November 1. 1990 (see Appendix C. November 1. 2009 Defendant D was convicted of four counts arising out of a scheme pursuant to which the defendant received kickbacks from subcontractors. Property Destruction. amendment 303).1 (Bribery in Procurement of Bank Loan and Other Commercial Bribery). – 370 – .000 from subcontractor B relating to contract Z (Commercial Bribery). which results in an offense level of 16 under either §2B1. (3) The defendant received $15. 1989 (see Appendix C. 1995 (see Appendix C.000 from subcontractor A relating to contract Y (Mail Fraud).1 (Theft. amendment 534). November 1. which treats the offense as a sophisticated fraud. November 1. amendment 350).000.000 from subcontractor A relating to contract X (Mail Fraud). The total money involved is $74. amendment 617).000 from subcontractor A relating to contract X (Commercial Bribery). (4) The defendant received $20. Since these two guidelines produce identical offense levels.

In determining whether a defendant qualifies under subsection (a). or affirmatively admit. voluntary assistance to authorities in the recovery of the fruits and instrumentalities of the offense. A defendant may remain silent in respect to relevant conduct beyond the offense of conviction without affecting his ability to obtain a reduction under this subsection. 2009 GUIDELINES MANUAL §3E1. but are not limited to. However. relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility. appropriate considerations include. a defendant who falsely denies. the following: (a) truthfully admitting the conduct comprising the offense(s) of conviction. voluntary surrender to authorities promptly after commission of the offense. voluntary payment of restitution prior to adjudication of guilt.1 PART E . Note that a defendant is not required to volunteer. If the defendant qualifies for a decrease under subsection (a). 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. relevant conduct beyond the offense of conviction in order to obtain a reduction under subsection (a). or frivolously contests. voluntary resignation from the office or position held during the commission of the offense. and truthfully admitting or not falsely denying any additional relevant conduct for which the defendant is accountable under §1B1. Acceptance of Responsibility (a) If the defendant clearly demonstrates acceptance of responsibility for his offense. (b) Commentary Application Notes: 1. voluntary termination or withdrawal from criminal conduct or associations. the offense level determined prior to the operation of subsection (a) is level 16 or greater. (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.3 (Relevant Conduct). decrease the offense level by 2 levels.November 1.1. decrease the offense level by 1 additional level.ACCEPTANCE OF RESPONSIBILITY §3E1.

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

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

including probation. 2009 CHAPTER FOUR .1 GUIDELINES MANUAL November 1.1. While empirical research has shown that other factors are correlated highly with the likelihood of recidivism. Add 2 points for each prior sentence of imprisonment of at least sixty days not counted in (a). 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 – . (See 18 U. (a) Add 3 points for each prior sentence of imprisonment exceeding one year and one month. However.S. Historical Note: Effective November 1. or escape status.g. The Commission has made no definitive judgment as to the reliability of the existing data.1 and §4A1.CRIMINAL HISTORY AND CRIMINAL LIVELIHOOD PART A . §4A1.CRIMINAL HISTORY Introductory Commentary The Comprehensive Crime Control Act sets forth four purposes of sentencing. Add 1 point for each prior sentence not counted in (a) or (b). e.3 are consistent with the extant empirical research assessing correlates of recidivism and patterns of career criminal behavior.. work release. 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. imprisonment. Add 2 points if the defendant committed the instant offense while under any criminal justice sentence. Part A. up to a total of 4 points for this item. To protect the public from further crimes of the particular defendant.C. The specific factors included in §4A1. Criminal History Category The total points from items (a) through (f) determine the criminal history category in the Sentencing Table in Chapter Five. Repeated criminal behavior is an indicator of a limited likelihood of successful rehabilitation.) A defendant’s record of past criminal conduct is directly relevant to those purposes.§4A1. for policy reasons they were not included here at this time. the likelihood of recidivism and future criminal behavior must be considered. the Commission will review additional data insofar as they become available in the future. A defendant with a record of prior criminal behavior is more culpable than a first offender and thus deserving of greater punishment. parole. supervised release. § 3553(a)(2). age and drug abuse. 1987.

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

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

For example.1(a).1(f) because the second sentence did not result in any additional point(s) (under §4A1. A defendant who commits the instant offense while a violation warrant from a prior sentence is outstanding (e. 2009 GUIDELINES MANUAL §4A1. Without the second sentence. Two points are added if the defendant committed any part of the instant offense (i.1(d). parole. To minimize problems with imperfect measures of past crime seriousness. or (c)).2(a). Background: Prior convictions may represent convictions in the federal system. See §4A1. only one point is added under §4A1. §4A1. There are jurisdictional variations in offense definitions. sentencing structures.2(a)(2))..1 to apply. such as whether the conviction was designated a felony or misdemeanor. "crime of violence" has the meaning given that term in §4B1.1(b) for the one-year sentence of imprisonment. and manner of sentence pronouncement. a term of unsupervised probation would be included. one point is added under §4A1. by itself.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. the defendant would only have received two 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). a total of 3 points is added under §4A1. An additional point is added under §4A1. In a case in which the defendant received two or more prior sentences as a result of convictions for crimes of violence that are counted as a single sentence (see §4A1..2(m). (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. and military courts. criminal history categories are based on the maximum term imposed in previous sentences rather than on other measures. For purposes of this guideline.g. if two points are added under §4A1.November 1.1(f). but a sentence to pay a fine. Failure to report for service of a sentence of imprisonment is to be treated as an escape from such sentence. §4A1. a defendant’s criminal history includes two robbery convictions for offenses committed on different occasions. any relevant conduct) less than two years following release from confinement on a sentence counted under §4A1. In contrast. a total of 3 points also is added under §4A1. 5.e.1(e).3 authorizes the court to depart from the otherwise applicable criminal history category in certain circumstances. territories. (b). See §4A1. tribal. would not be included.1(a).1(a). For example.1(f).1(a).2(a)(2). fifty state systems. See §4A1.1(e). See §4A1. even if that sentence would have expired absent such warrant. A total of up to 3 points may be added under §4A1. – 377 – . and foreign. 6. 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. the District of Columbia. This also applies if the defendant committed the instant offense while in imprisonment or escape status on such a sentence.2(p). or (c).1(a) or (b). In recognition of the imperfection of this measure however. However.1(f) for each such sentence that did not result in any additional points under §4A1. §4A1. But no additional point is added under §4A1. The sentences for these offenses were imposed on the same day and are counted as a single prior sentence. a probation.2(n).

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

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

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

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

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

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

Revocations to be Considered.2(d) covers offenses committed prior to age eighteen.2(a)(2). Applicable Time Period. Rather than count the original sentence and the resentence after revocation as separate sentences. e. §4A1.2(a)(2). or serious dissimilar. As used in §4A1.. at the time of revocation another sentence was imposed for a new criminal conviction. Example: A defendant was serving two probationary sentences.—Section 4A1. Attempting to count every juvenile adjudication would have the potential for creating large disparities due to the differential availability of records. 2009 Offenses Committed Prior to Age Eighteen.3 (Adequacy of Criminal History Category). 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. did not exceed one year and one month. 9. probation was revoked on both sentences as a result of the same violation conduct. even if probation or conditional release was subsequently revoked.—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. and the total should be counted as if it were one sentence. By this approach. Convictions Set Aside or Defendant Pardoned.2(f) requires counting prior adult diversionary dispositions if they involved a judicial determination of guilt or an admission of guilt in open court. in order to restore civil rights or to remove the stigma associated with a criminal conviction.2(k) covers revocations of probation and other conditional sentences where the original term of imprisonment imposed. the sentence given upon revocation should be added to the original sentence of imprisonment. Diversionary Dispositions. the maximum three points would be assigned. . 11.2(d)(2) and (e). If the court finds that a sentence imposed outside this time period is evidence of similar. and such sentences are counted separately under §4A1. expunged convictions are not counted.2 7.2(j). the court may consider this information in determining whether an upward departure is warranted under §4A1. that conviction would be computed separately from the sentence imposed for the revocation.—Section 4A1. If. for offenses committed prior to age eighteen. criminal conduct. Sentences resulting from such convictions are to be counted.—Section 4A1. each counted separately under §4A1. 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. or the total of both sentences exceeded one year and one month. and the defendant was sentenced to a total of 45 days of imprisonment. the sentence imposed upon revocation. only those that resulted in adult sentences of imprisonment exceeding one year and one month. Howe