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

) 502-4500 FAX (202) 502-4699

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

Sincerely,

Ricardo H. Hinojosa

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

RECOMMENDED CITATION FORM

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

I.

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

II.

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

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

ii

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

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

5. 6. 7.

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

334 336 337

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

v

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

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

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

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

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

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

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

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

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

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

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

A GUIDELINES MANUAL November 1.10 (Race. § 3553(b). not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. For one thing. (b) Departures. specific offense characteristics. Including Drug or Alcohol Dependence or Abuse). For another. and §5K2. each count of which charges sale of 100 grams of heroin or theft of $10. When a court finds an atypical case. Of course. Creed. does contain a significant number of real offense elements. Moreover. The Commission recognized that a charge offense system has drawbacks of its own. 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. whether or not mentioned anywhere else in the guidelines. 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." 18 U. such a system risked return to wide disparity in sentencing practice. that could constitute grounds for departure in an unusual case. the same as a single-count indictment charging sale of 300 grams of heroin or theft of $30. the guidelines treat a three-count indictment. the guidelines take account of a number of important. the last sentence of §5K2. 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. however. §5H1. Sex. Finally. commonly occurring real offense elements such as role in the offense. and SocioEconomic Status). 1 Pt. the Commission moved closer to a charge offense system. nor did it find a practical way to reconcile the need for a fair adjudicatory procedure with the need for a speedy sentencing process given the potential existence of hosts of adjudicated "real harm" facts in many typical cases. cross references. In the Commission’s view. In its initial set of guidelines submitted to Congress in April 1987.12 (Coercion and Duress). or the amount of money actually taken. the third sentence of §5H1. quadratic roots and other mathematical operations that the Commission considered too complex to be workable. one to which a particular guideline linguistically applies but where conduct significantly differs from the norm. and adjustments. through alternative base offense levels.C.S. 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. Section 5H1. for example. or to a degree. The effort proposed as a solution to these problems required the use of. –6– .19 (Post-Sentencing Rehabilitative Efforts) list several factors that the court cannot take into account as grounds for departure. The Commission intends the sentencing courts to treat each guideline as carving out a "heartland.4 (Physical Condition. 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. 2009 for the large number of diverse harms arising in different circumstances. a sentencing court may control any inappropriate manipulation of the indictment through use of its departure power. Religion. With those specific exceptions. the Commission does not intend to limit the kinds of factors.000. Furthermore. For example.12 (Lack of Guidance as a Youth and Similar Circumstances). National Origin.000. the presence of a gun.Ch. the court may consider whether a departure is warranted." a set of typical cases embodying the conduct that each guideline describes. however. This system. the Commission will closely monitor charging and plea agreement practices and will make appropriate adjustments should they become necessary.

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

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

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

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

If a money table were to make only a few distinctions. By overlapping the ranges. Each level in the table prescribes ranges that overlap with the ranges in the preceding and succeeding levels.S.000 was obtained as a result of a fraud. Finally. Although the data available to it. A legislated mandatory minimum or career offender sentences). Similarly. produced by the Commission and the Bureau of Prisons in 1987. The Commission recognizes that some will criticize this approach as overly cautious. A Concluding Note The Commission emphasizes that it drafted the initial guidelines with considerable caution. The Commission has established a sentencing table that for technical and practical reasons contains 43 levels. Where a table has many small monetary distinctions.C. These tables often have many rather than a few levels. The table overlaps offense levels meaningfully. In doing so. The guidelines. whether $10. 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.November 1. like all data. A change of six levels roughly doubles the sentence irrespective of the level at which one starts. estimated at approximately 10 percent over a period of ten years. 5.000 or $11. 2009 GUIDELINES MANUAL Ch. the table should discourage unnecessary litigation. the levels work to increase a sentence proportionately.000 convictions.000 augmented presentence reports. and at the same time preserves the maximum degree of allowable discretion for the court within each level. It began with those that were the basis for a significant number of prosecutions and sought to place them in a rational order. 1 Pt. the parole guidelines. little purpose will be served in protracted litigation trying to determine. Again. At the same time. it will cure wide disparity. permit courts to exercise the greatest permissible range of sentencing discretion. It developed additional distinctions relevant to the application of these provisions and it applied sentencing ranges to each resulting category. The Commission is a permanent body that can amend the guidelines each year. the reason is to minimize the likelihood of unnecessary litigation. it minimizes the likelihood of litigation because the precise amount of money involved is of considerably less importance. are imperfect. Thus. many of the individual guidelines refer to tables that correlate amounts of money with offense levels. works proportionately. are projected to lead to an increase in prison population that computer models. Because of time constraints and the nonexistence of – 11 – . It examined the many hundreds of criminal statutes in the United States Code. experience with the guidelines will lead to additional information and provide a firm empirical basis for consideration of revisions. (h) The Sentencing Table. the guidelines will apply to more than 90 percent of all felony and Class A misdemeanor cases in the federal courts. and policy judgments. for example. as representing too little a departure from pre-guidelines sentencing practice. 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. it relied upon pre-guidelines sentencing practice as revealed by its own statistical analyses based on summary reports of some 40. each distinction would become more important and litigation over which category an offender fell within would become more likely. Yet. a sample of 10. § 994(b)(2)).

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

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

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

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

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

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

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

amendments 591 and 601).g.2. November 1. 1988 (see Appendix C. – 19 – . the subdivision that best describes the level of bodily injury is used.—Whenever a guideline makes reference to another guideline. 5. amendment 651). references to §2B1. such a parenthetical restatement of the guideline heading may be abbreviated for ease of reference.1 (Larceny. the provision applicable to the discharge of the firearm would be used. if a firearm is both discharged and brandished. 1997 (see Appendix C. Forgery. In some cases. §1B1. 2009 GUIDELINES MANUAL §1B1. 1987. November 1. Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States) may be abbreviated as follows: §2B1.—Absent an instruction to the contrary. and Fraud). Historical Note: Effective November 1. enhancements under Chapter Two. November 1. amendment 388).. November 1. determine the offense guideline section in Chapter Two applicable to the stipulated offense. November 1. 1990 (see Appendix C. amendment 617). November 1.November 1. 2006 (see Appendix C. 1993 (see Appendix C. amendment 684). the offense conduct charged in the count of the indictment or information of which the defendant was convicted). October 27. November 1. and determinations may be triggered by the same conduct. Where two or more guideline provisions appear equally applicable. even though the enhancement and the adjustment both are triggered by the shooting of the officer. use the provision that results in the greater offense level. Embezzlement. In the case of lengthy guideline headings. (B) Cumulative Application of Multiple Adjustments from Multiple Guidelines. and determinations under Chapter Four are to be applied cumulatively. 6. amendments 545 and 546). amendments 69-72 and 303). such enhancements. shooting a police officer during the commission of a robbery may warrant an injury enhancement under §2B3. November 1. 2000 (see Appendix C. Offenses Involving Stolen Property.2. amendment 1). adjustments. This parenthetical is provided only for the convenience of the reader and is not intended to have substantive effect. Fraud and Deceit. However. 2003 (see Appendix C. For example. 1989 (see Appendix C..1 (Theft. amendment 661). and Other Forms of Theft. November 1.2 of bodily injury.e. the adjustments for different degrees of bodily injury (subdivisions (A)-(E)) are not added together. 2003 (see Appendix C. in §2A2. Amended effective January 15. Property Damage or Destruction. Use of Abbreviated Guideline Titles. E. For example. but the guidelines authorize the application of only one such provision. a parenthetical restatement of that other guideline’s heading accompanies the initial reference to that other guideline. Property Destruction. Applicable Guidelines (a) Determine the offense guideline section in Chapter Two (Offense Conduct) applicable to the offense of conviction (i. amendment 361).2(b)(2).1(b)(3) and an official victim adjustment under §3A1. 1991 (see Appendix C. amendment 497). 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. adjustments under Chapter Three. 2001 (see Appendix C.

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

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

Unless otherwise specified. (i) the base offense level where the guideline specifies more than one base offense level. admits to having committed two additional robberies. 1992 (see Appendix C. Relevant Conduct (Factors that Determine the Guideline Range) (a) Chapters Two (Offense Conduct) and Three (Adjustments). whether or not charged as a conspiracy).3. or enterprise undertaken by the defendant in concert with others. 1991 (see Appendix C. November 1. November 1. Amended effective January 15. amendment 434).3(a)(2) governs consideration of the defendant’s conduct.§1B1. 2000 (see Appendix C. counseled. in preparation for that offense. 1989 (see Appendix C. if the defendant is convicted of one count of robbery but. abetted. or willfully caused by the defendant. scheme. amendment 438). all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity. as part of a plea agreement.g. endeavor. one count of conspiracy to commit the second robbery.. In such cases. For example. commanded. would convict the defendant of conspiring to commit that object offense. the guidelines are to be applied as if the defendant had been convicted of three counts of robbery. §1B1. were it sitting as a trier of fact.2 GUIDELINES MANUAL November 1.2(d) (e. November 1. shall be determined on the basis of the following: (1) (A) all acts and omissions committed. 2001 (see Appendix C. and one count of conspiracy to commit the third robbery. and (iv) adjustments in Chapter Three. Note. 4. if the object offenses specified in the conspiracy count would be grouped together under §3D1. – 22 – . November 1. 2009 offense(s). (ii) specific offense characteristics and (iii) cross references in Chapter Two. or in the course of attempting to avoid detection or responsibility for that offense. amendment 591). procured. and in the case of a jointly undertaken criminal activity (a criminal plan. the guidelines are to be applied as if the defendant had been convicted of an additional count for each of the offenses stipulated. because §1B1. amendment 2). For example. 1988 (see Appendix C. amendments 73-75 and 303). November 1. (B) that occurred during the commission of the offense of conviction. where a conviction on a single count of conspiracy establishes that the defendant conspired to commit three robberies. the guidelines are to be applied as if the defendant had been convicted on one count of conspiracy to commit the first robbery. Historical Note: Effective November 1. aided. 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. 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. amendments 613 and 617). induced. a conspiracy to steal three government checks) it is not necessary to engage in the foregoing analysis. 1987. however. subsection (d) should only be applied with respect to an object offense alleged in the conspiracy count if the court.

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

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

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

and J are included in a single count charging conspiracy to import marihuana. 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. Defendants L and M are aware of each other’s criminal activity but operate independently. 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). 2009 Requirement that the conduct of others be in furtherance of the jointly undertaken criminal activity and reasonably foreseeable. Defendants F and G each are accountable for the entire amount ($55. 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. Defendant L is accountable under subsection (a)(1)(A) only for the quantity of – 26 – (2) (3) (4) . 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. working together. Defendants F and G. design and execute a scheme to sell fraudulent stocks by telephone. Each defendant is convicted of a count charging conspiracy to distribute child pornography. Defendant M is a retail-level dealer who purchases child pornography from Defendant K and resells it. Each defendant is accountable for the amount obtained by his accomplice under subsection (a)(1)(B) because the conduct of each was in furtherance of the jointly undertaken criminal activity and was reasonably foreseeable in connection with that criminal activity. Defendant D then uses that check as a down payment in a scheme to fraudulently obtain $15.000 because the fraudulent scheme to obtain $15. Defendant L is a retail-level dealer who purchases child pornography from Defendant K and resells it. Each is convicted of mail fraud. Defendant N is Defendant K’s assistant who recruits customers for Defendant K and frequently supervises the deliveries to Defendant K’s customers. Defendant G fraudulently obtains $35.000). He is not accountable for prior or subsequent shipments of marihuana imported by Defendants H or I because those acts were not in furtherance of his jointly undertaken criminal activity (the importation of the single shipment of marihuana).000 was not in furtherance of the criminal activity he jointly undertook with Defendant D (i.. I. but otherwise operates independently of Defendant K. Defendant K is accountable under subsection (a)(1)(A) for the entire quantity of child pornography sold to Defendants L and M.e. but otherwise operates independently of Defendant K.000 worth of merchandise. Each defendant is accountable for the amount he personally obtained under subsection (a)(1)(A).§1B1. Defendant E is convicted of forging the $800 check and is accountable for the forgery of this check under subsection (a)(1)(A). Defendant K is a wholesale distributor of child pornography. Defendant F fraudulently obtains $20. Similarly.000. the forgery of the $800 check).3 (c) GUIDELINES MANUAL November 1. Defendant E is not accountable for the $15.000. Defendants H.

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

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

1(b)(2)(B) (which is applicable only if the defendant is convicted under 18 U.000 and a completed theft of $30. or both. The prior state prison sentence is counted under Chapter Four (Criminal History and Criminal Livelihood).4(a)(2) ("if the offense was committed by the means set forth in 18 U.1. See Application Note 4 in the Commentary to §2X1. however. 8. – 29 – . 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. Unless otherwise specified.C. not as part of the same course of conduct or common scheme or plan as the offense of conviction. § 1956". solicitation. Examples: (1) The defendant was convicted for the sale of cocaine and sentenced to state prison. In this example. See Application Note 3(C) of §2S1. In the case of a partially completed offense (e. attempt. accessory after the fact. He is convicted in state court for the first sale and sentenced to imprisonment. or misprision of felony in respect to that particular statute. conviction under the statute is not required.1 (Attempt.g.C. or Conspiracy) whether the conviction is for the substantive offense. see §4A1.C. use of a statutory reference to describe a particular set of circumstances does not require a conviction under the referenced statute. under subsection (a)(2).. § 1956(h) and the sole object of that conspiracy was to commit an offense set forth in 18 U.1. that Application Note 4 is not applicable where the offense level is determined under §2X1.3 6. An example of this usage is found in §2A3. the offense level is to be determined in accordance with §2X1. 7. For example.November 1. Note. using the same accomplices and modus operandi.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. he again sold cocaine to the same person.S. aiding or abetting. Subsequently. For example.S. he is then convicted in federal court for the second sale. Solicitation. the inchoate offense (attempt. In this case. Therefore. the offense conduct relevant to the state prison sentence is considered as prior criminal history. § 1957. §2S1. he is arrested by state authorities for the first sale and by federal authorities for the second sale.S. Immediately upon release from prison.S. 2009 GUIDELINES MANUAL §1B1.2(a)(1). § 1956) would be applied in determining the offense level under §2X3.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. Thus. or conspiracy).1 (Laundering of Monetary Instruments. The instant federal offense (the offense of conviction) charges this latter sale.C. Engaging in Monetary Transactions in Property Derived from Unlawful Activity). § 1956 but would not be applied in a case in which the defendant is convicted of a conspiracy under 18 U. § 2242").C. For the purposes of subsection (a)(2). subsection (b)(2)(B) applies if the defendant "is convicted under 18 U. The state prison sentence for that sale is not counted as a prior sentence. 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.C. in §2S1. solicitation.000).S. an offense involving an attempted theft of $800.1(c)(1). the cocaine sale associated with the state conviction is considered as relevant conduct to the instant federal offense. (2) The defendant engaged in two cocaine sales constituting part of the same course of conduct or common scheme or plan. Unless such an express direction is included. the cocaine sales are not separated by an intervening sentence.

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

Subsection (a)(2) provides for consideration of a broader range of conduct with respect to one class of offenses. 1988 (see Appendix C. a pattern of embezzlement may consist of several acts of taking that cannot separately be identified. 2001 (see Appendix C. 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. 2009 GUIDELINES MANUAL §1B1. (This is true whether the defendant is convicted of one or both robberies. Property Damage By Use of Explosives) specifies consideration of the risk of harm created. 2004 (see Appendix C. identifiable units that are meaningful for purposes of sentencing. November 1. in a robbery case in which the defendant robbed two banks.e. Conversely. appears to be the most reasonable approach to writing workable guidelines for these offenses. Thus.. 1989 (see Appendix C. the amount of money taken in one robbery would not be taken into account in determining the guideline range for the other robbery. 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. – 31 – . regardless of the number of counts that are alleged or on which a conviction is obtained.2(d). amendments 76-78 and 303). than with respect to other offenses such as assault. even though the overall conduct is clear. for example. primarily certain property. 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. each taking may provide a basis for a separate count. which provides for grouping of multiple counts arising out of a continuing offense when the offense guideline takes the continuing nature into account. For example. even if both robberies were part of a single course of conduct or the same scheme or plan. §2K1.4 (Arson. amendment 309). so that convictions on multiple counts are considered separately in determining the guideline sentencing range. the applicability of subsection (a)(2) does not depend upon whether multiple counts are alleged. However.4 (Involuntary Manslaughter) specifies consideration of the defendant’s state of mind. also prevents double counting. The distinction is made on the basis of §3D1. when §3D1. in a drug distribution case. November 1. amendment 439).) Subsections (a)(1) and (a)(2) adopt different rules because offenses of the character dealt with in subsection (a)(2) (i. amendment 503). November 1. November 1.3 is governed by §1B1. November 1. For example. 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. November 1.November 1. amendment 389). which provides for grouping together (i. amendments 617 and 634). §2A1. amendment 674). 1990 (see Appendix C. to which §3D1.. 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. Thus. in an embezzlement case. 1994 (see Appendix C. treating as a single count) all counts charging offenses of a type covered by this subsection. tax. Subsection (a)(4) requires consideration of any other information specified in the applicable guideline. for example. robbery and burglary. it is important to take into account the full range of related conduct.e. the scheme is an element of the offense and each mailing may be the basis for a separate count.2(d). amendment 3). 1991 (see Appendix C. November 1.2(d) applies) often involve a pattern of misconduct that cannot readily be broken into discrete. On the other hand. in an embezzlement case. Relying on the entire range of conduct. Continuing offenses present similar practical problems. The reference to §3D1. Similarly. in a mail fraud case. 1992 (see Appendix C. Another consideration is that in a pattern of small thefts.2(d) does not apply. Amended effective January 15. fraud and drug offenses for which the guidelines depend substantially on quantity. Historical Note: Effective November 1. In addition. 1987.2(a)).

§1B1.3) and information that a court may consider in imposing sentence within that range. express a Commission policy that certain factors should not be considered for any purpose. amendment 674) . or should be considered only for limited purposes.S. but as part of a plea negotiation entered a guilty plea to only one. Chapter Five.C. Commentary Background: This section distinguishes between factors that determine the applicable guideline sentencing range (§1B1. § 3661. which recodifies 18 U. 2000 (see Appendix C.e. (b) (2) (c) If the offense level is determined by a reference to another guideline under subsection (a) or (b)(1) above. Historical Note: Effective November 1. however. See. if the defendant committed two robberies. without limitation. the base offense level. or whether a departure from the guidelines is warranted. 1987. the adjustments in Chapter Three (Adjustments) – 32 – . character and conduct of the defendant. 1728). 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.4. § 3577. makes it clear that Congress intended that no limitation would be placed on the information that a court may consider in imposing an appropriate sentence under the future guideline sentencing system.C. and special instructions). Some policy statements do.C. November 1. § 3661. amendment 303).. November 1.4 §1B1. An instruction to use a particular subsection or table from another offense guideline refers only to the particular subsection or table referenced.S. Part H (Specific Offender Characteristics). and special instructions). The recodification of this 1970 statute in 1984 with an effective date of 1987 (99 Stat. cross references. the base offense level. 1988 (see Appendix C. Amended effective January 15. the court may consider. and not to the entire offense guideline. (1) An instruction to use the offense level from another offense guideline refers to the offense level from the entire offense guideline (i. 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. except as provided in subdivision (2) below. For example. The section is based on 18 U. Interpretation of References to Other Offense Guidelines (a) A cross reference (an instruction to apply another offense guideline) refers to the entire offense guideline (i. 2004 (see Appendix C.. e. See 18 U. cross references.S. November 1. specific offense characteristics.5.e.. 1989 (see Appendix C. §1B1. amendment 604 ). GUIDELINES MANUAL November 1. 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 4). unless otherwise prohibited by law. specific offense characteristics.g. any information concerning the background.

2 (Aggravated Assault).1 (Offering. For situations in which a comparison involving both Chapters Two and Three is necessary.1(b)(7)).. Conspiracy to Defraud by Interference with Governmental Functions). the greater offense level means the offense level taking into account only the Chapter Two offense level. Commentary Application Notes: 1. Consistent with the provisions of §1B1. except as otherwise expressly provided. Giving. Where there is more than one such other offense. (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. except as otherwise expressly provided. A reference may direct that. or may be more general (e." but may also appear in the portion of the guideline entitled "Base Offense Level" (e. the greater offense level means the greater Chapter Two offense level. if the guideline reads "2 plus the offense level from §2A2. cross references. .November 1. 2009 GUIDELINES MANUAL §1B1. the offense guideline for such other offense is to be applied.2(a)(1) and (2)). In such cases. only the specific subsection of that other guideline is used. to the guideline for the "underlying offense"). In such case. unless the offense guideline expressly provides for consideration of both the Chapter Two offense level and applicable Chapter Three adjustments. Extortion Under Color of Official Right. In such case. to which §2K2. see the Commentary to §§2C1. 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. Prohibited Transactions Involving Firearms or Ammunition) applies.5 also are determined in respect to the referenced offense guideline.g. §2D1. Fraud Involving the Deprivation of the Intangible Right to Honest Services of Public Officials. References to other offense guidelines are most frequently designated "Cross References. and 2E1. Such references incorporate the specific offense characteristics.g. For example. 2E1.." the user would determine the offense level from §2A2. is found to have possessed that – 33 – 3. the reference in §2D1. and special instructions as well as the base offense level. degree of injury and motive. Soliciting.2(d)) is to be used. if a defendant convicted of possession of a firearm by a felon.2 (Interstate or Foreign Travel or Transportation in Aid of a Racketeering Enterprise).1". if the conduct involved another offense. A reference to another guideline may direct that such reference is to be used only if it results in a greater offense level. the most serious such offense (or group of closely related offenses in the case of offenses that would be grouped together under §3D1. e. weapon use. including any applicable adjustments for planning.10(a)(1) to "3 plus the offense level from the Drug Quantity Table in §2D1..g. or "Specific Offense Characteristics" (e. Possession.g. For example.1 (Unlawful Receipt.2.3 (Relevant Conduct). or Transportation of Firearms or Ammunition. A reference may also be to a specific subsection of another guideline.1 (Unlawful Conduct Relating to Racketeer Influenced and Corrupt Organizations).. and then increase by 2 levels. or Receiving a Bribe. 2. These references may be to a specific guideline. §2A4.

the commentary may provide background – 34 – . November 1. is the first guideline in the first subpart in Part B of Chapter Two. 2001 (see Appendix C. §1B1. To illustrate: Historical Note: Effective November 1. November 1. may warrant departure from the guidelines. amendment 616). and the final number is the guideline. See 18 U. the cross reference at §2K2. § 3742. 1989 (see Appendix C. 1987. the commentary may suggest circumstances which. 2009 firearm during commission of a series of offenses. amendments 79.2 is the second guideline in the first subpart in Part A of Chapter Three. November 1. part. §1B1. 1997 (see Appendix C. Significance of Commentary The Commentary that accompanies the guideline sections may serve a number of purposes. 80. The first number is the chapter. Or. amendment 429). Second. in the view of the Commission. November 1.S.5 GUIDELINES MANUAL November 1.6.C. subjecting the sentence to possible reversal on appeal.§1B1. it may interpret the guideline or explain how it is to be applied. amendment 547). Historical Note: Effective November 1.1. 1995 (see Appendix C. §3A1. The parts are divided into subparts and individual guidelines. Such commentary is to be treated as the legal equivalent of a policy statement. November 1. subpart and individual guideline. Failure to follow such commentary could constitute an incorrect application of the guidelines. Section 2B1. 1987. Each guideline is identified by three numbers and a letter corresponding to the chapter. First. the second number is the subpart. amendment 534). November 1. amendment 666). the letter represents the part of the chapter. amendment 440). Amended effective November 1. Finally. Policy statements are similarly identified. for example. and 302).1(c) is applied to the offense resulting in the greatest offense level. 1991 (see Appendix C. Structure of the Guidelines The guidelines are presented in numbered chapters divided into alphabetical parts. 1992 (see Appendix C.7. 2004 (see Appendix C.

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

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

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

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

657. Factors for Consideration. 516. 591. § 3582(c)(2) is triggered only by an amendment listed in subsection (c) that lowers the applicable guideline range. 506. § 3553(a) and United States v. 371. 269. 706 as amended by 711.C. or (ii) an amendment listed in subsection (c) is applicable to the defendant but the amendment does not have the effect of lowering the defendant’s applicable guideline range because of the operation of another guideline or statutory provision (e. and (II) the extent of such reduction. 488.S. 329. Booker.—Eligibility for consideration under 18 U. (c) Covered Amendments. 176. 499.—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 – .C. 490. 433.— (A) Eligibility. (C) Prohibition. a further reduction generally would not be appropriate.S.C. 543 U.10 constituted a non-guideline sentence determined pursuant to 18 U. a reduction in the defendant’s term of imprisonment is not authorized under 18 U.—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.—Amendments covered by this policy statement are listed in Appendix C as follows: 126. but only within the limits described in subsection (b). and (II) the extent of such reduction.—In no event may the reduced term of imprisonment be less than the term of imprisonment the defendant has already served.. but only within the limits described in subsection (b).S. Commentary Application Notes: 1. 702.C. a statutory mandatory minimum term of imprisonment). § 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. 505. 454. § 3553(a) in determining: (I) whether a reduction in the defendant’s term of imprisonment is warranted. Post-Sentencing Conduct. 130.—Consistent with 18 U. Accordingly. 2009 GUIDELINES MANUAL §1B1. 461. 341.S. § 3582(c)(2). and 715.S. Public Safety Consideration. the court shall consider the factors set forth in 18 U.November 1. 484. 156. Application of Subsection (a).g.S.— (i) In General. 599. 606. 380. 379.C. 220 (2005).

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

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

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

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

11 GUIDELINES MANUAL November 1.5.2d 438 (2d Cir. 1993 (see Appendix C. see also United States v. the approach set forth in subsection (b)(3) should be followed regardless of whether the offenses of conviction are the type in which the conduct is grouped under §3D1. United States v. Consequently. Therefore.1-3D1. 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. 1989) (similar). 503 U. denied. 901 F.S.2d 29 (4th Cir. R. 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. cert. Historical Note: Effective November 1. However. a single sentencing range is determined based on the defendant’s overall conduct. even in a complex case involving multiple counts that occurred under several different versions of the Guidelines Manual.C. 493 U. 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. Stephenson. United States v. §1B1.2d 143 (8th Cir. 1987.L. the ex post facto clause would not bar application of the amended guideline to the first conviction. amendment 475). 291 (1992).§1B1. Under the guideline sentencing system. Allen. 1993 (see Appendix C. See United States v. Ykema. 5G1. and unless that clause would be violated. 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. Congress’s directive to apply the sentencing guidelines in effect at the time of sentencing must be followed. §§ 5031-5042). Historical Note: Effective November 1. 1990) (similar).2(d). Cusack. a contrary conclusion would mean that such defendant was subject to a lower guideline range than if convicted only of the second offense. 887 F. if a defendant is sentenced in January 1992 for a bank robbery committed in October 1988 and one committed in November 1991.S. 1992 (see Appendix C. Moreover. noting that habitual offender statutes routinely augment punishment for an offense of conviction based on acts committed before a law is passed). drug quantities as relevant conduct for the count of conviction. amendment 442).the manual in effect at the time the last offense of conviction was completed and the manual in effect at the time of sentencing. the November 1991 Guidelines Manual should be used to determine a combined guideline range for both counts. 1989) (upholding inclusion of pre-November 1.12.S. 886 F. Amended effective November 1.2d 697 (6th Cir. The ex post facto clause does not distinguish between groupable and nongroupable offenses. Thus. 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).. 2009 were enacted. 921 F. – 44 – . amendment 474). See generally United States v.2). it will not be necessary to compare more than two manuals to determine the applicable guideline range -. 1062 (1990). and the second after. even if there are multiple counts of conviction (see §§3D1. In this example.C.

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

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

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

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

2291. November 1. November 1. 2332b(a)(1). 2009 GUIDELINES MANUAL §2A1. §2A1. November 1. November 1. November 1. amendment 663). amendment 663). 2006 (see Appendix C. November 1. November 1. November 1. 2002 (see Appendix C. 2199. 2002 (see Appendix C. Amended effective November 1. 2006 (see Appendix C. 2004 (see Appendix C. 1841(a)(2)(C). November 1. For additional statutory provision(s). 2004 (see Appendix C. §2A1. amendment 637). 2004 (see Appendix C. 2282A. §§ 1112.4. 1993 (see Appendix C. an upward departure may be warranted. Voluntary Manslaughter (a) Base Offense Level: 29 Commentary Statutory Provisions: 18 U. This guideline applies when a sentence of death is not imposed under those specific provisions. amendment 699). brutal. 2007 (see Appendix C. §§ 1111. §2A1. amendment 476).8 (Extreme Conduct). Historical Note: Effective November 1.November 1. Amended effective November 1. amendments 699 and 700). 2007 (see Appendix C. 1841(a)(2)(C). see Appendix A (Statutory Index). 2199. Application Note: 1. amendment 685). 1987. amendment 663). 1987. if the offense involved criminally negligent conduct. 2291. amendment 82). Involuntary Manslaughter (a) Base Offense Level: (1) 12.S. 2002 (see Appendix C. Upward Departure Provision. Amended effective November 1.C. For additional statutory provision(s). amendments 699 and 700). amendment 685). Historical Note: Effective November 1. see Appendix A (Statutory Index). amendment 685). See §5K2. Second Degree Murder (a) Base Offense Level: 38 Commentary Statutory Provisions: 18 U. amendment 637).4 imposed under the specific provisions contained in that statute. 2332b(a)(1). amendment 637). 1987.S. 2007 (see Appendix C. or degrading to the victim.3. amendment 310). Historical Note: Effective November 1.2. November 1. cruel. November 1.—If the defendant’s conduct was exceptionally heinous. November 1.C. 2340A. or – 49 – . 1990 (see Appendix C. 1989 (see Appendix C. 2006 (see Appendix C.

while under the influence of alcohol or drugs ordinarily should be treated as reckless. or similarly dangerous actions. November 1. November 1.5. Definitions. Commentary Statutory Provisions: 18 U.§2A1. (b) Special Instruction (1) If the offense involved the involuntary manslaughter of more than one person. 2003 (see Appendix C.C.C. Amended 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. 2006 (see Appendix C. amendment 685). § 1992(d)(7). November 1. November 1.S. 1841(a)(2)(C). § 1112. see Appendix A (Statutory Index). Conspiracy or Solicitation to Commit Murder (a) Base Offense Level: 33 – 50 – . amendment 652). 1987. "Mass transportation" has the meaning given that term in 18 U. amendment 637). 2007 (see Appendix C. if the offense involved the reckless operation of a means of transportation. §2A1.S. convictions for involuntary manslaughter under 18 U.C. For additional statutory provision(s). A homicide resulting from driving a means of transportation. Application Note: 1. amendment 663). amendment 699).—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. Historical Note: Effective November 1. "Means of transportation" includes a motor vehicle (including an automobile or a boat) and a mass transportation vehicle. or 22. but which is not reckless. §§ 1112. 2009 (Apply the greater): (A) (B) 18. "Reckless" includes all. if the offense involved reckless conduct. 2332b(a)(1). Offenses with this characteristic usually will be encountered as assimilative crimes. 2004 (see Appendix C.S. Chapter Three. 2002 (see Appendix C. 2291.4 (2) GUIDELINES M ANUAL November 1. 2199. "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. or nearly all.

If the offense resulted in an attempted murder or assault with intent to commit murder. apply §2A2.1 (Assault with Intent to Commit Murder. (2) – 51 – . or 27. Assault with Intent to Commit Murder. increase by 4 levels. increase by 4 levels. (2) (b) Specific Offense Characteristics (1) If (A) the victim sustained permanent or life-threatening bodily injury. amendment 311). (2) Commentary Statutory Provisions: 18 U. (B) the victim sustained serious bodily injury. Historical Note: Effective November 1. apply §2A1. if the object of the offense would have constituted first degree murder. Attempted Murder). (c) Cross References (1) If the offense resulted in the death of a victim.1 (b) Specific Offense Characteristic (1) If the offense involved the offer or the receipt of anything of pecuniary value for undertaking the murder.1. §§ 351(d). 2004 (see Appendix C. 1751(d). ASSAULT §2A2. 373. increase by 3 levels. Amended effective November 1. If the offense involved the offer or the receipt of anything of pecuniary value for undertaking the murder. * * * * * 2.C. otherwise. 2009 GUIDELINES MANUAL §2A2.November 1.S. Attempted Murder (a) Base Offense Level: (1) 33.1 (First Degree Murder). 371. increase by 2 levels. increase by 4 levels. 1117. amendment 663). or (C) the degree of injury is between that specified in subdivisions (A) and (B). 1990 (see Appendix C.

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

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

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

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

1989 (see Appendix C. amendment 64). and "firearm" have the meaning given those terms in Application Note 1 of the Commentary to §1B1. 3056(d). For additional statutory provision(s).7 (Disruption of Governmental Function). Historical Note: Effective October 15. pursuant to subsection (c). 3. (a)(2)(A). 2237(a)(1).2 (Aggravated Assault). 2. amendment 663). 2004 (see Appendix C.§2A2. November 1. 2009 (including a firearm) was possessed and its use was threatened.4 GUIDELINES M ANUAL November 1.—For purposes of this guideline.1 (Application Instructions). Application Notes: 1. 1502.S. amendments 89 and 90). 2005 (see Appendix C. Cross Reference (1) If the conduct constituted aggravated assault. involve the creation of that risk). increase by 2 levels. If the defendant creates that risk and no higher guideline adjustment is applicable for the conduct creating the risk. November 1. increase by 3 levels. "dangerous weapon". amendment 679). * * * * * – 56 – .S. do not apply §3A1. an upward departure may be warranted. but not always. § 758 for fleeing or evading a law enforcement checkpoint at high speed will often. 2007 (see Appendix C. 1501.2 (Official Victim) unless. 1997 (see Appendix C.2 (Aggravated Assault). 1988 (see Appendix C. "bodily injury". Amended effective November 1.C. Conversely. amendment 443). Definitions. apply §2A2.—The base offense level does not assume any significant disruption of governmental functions. §§ 111.C. In situations involving such disruption. November 1. amendment 550). November 1.2 (Reckless Endangerment During Flight). November 1. (2) (c) If the victim sustained bodily injury. Application of Certain Chapter Three Adjustments. Upward Departure Provision. see Appendix A (Statutory Index). See §5K2. 1992 (see Appendix C. the offense level is determined under §2A2. 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. Commentary Statutory Provisions: 18 U.—The base offense level incorporates the fact that the victim was a governmental officer performing official duties. amendment 699). Therefore. apply §3C1.

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

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

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

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

or coerce the minor to engage in prohibited sexual conduct. induce. entice. 2009 GUIDELINES MANUAL §2A3. and (ii) could be provided for the purposes of engaging in sexually explicit conduct.C.C. § 230(f)(2)). If (A) subsection (b)(1) does not apply. whether fictitious or not.2.1 (Criminal Sexual Abuse.November 1.C. "Interactive computer service" has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U. induce. or coerce the minor to engage in prohibited sexual conduct. §2A3. For additional statutory provision(s). who a law enforcement officer represented to a participant (i) had not attained the age of 16 years.S.2 §2A3.—For purposes of this guideline: "Computer" has the meaning given that term in 18 U. increase by 4 levels. or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 16 years. apply §2A3. Attempt to Commit Criminal Sexual Abuse).1 shall apply. – 61 – . (B) an individual. § 2243(a). § 1030(e)(1). Definitions. entice. regardless of the "consent" of the victim. If a computer or an interactive computer service was used to persuade. and (B)(i) the offense involved the knowing misrepresentation of a participant’s identity to persuade. "Minor" means (A) an individual who had not attained the age of 16 years. or (ii) a participant otherwise unduly influenced the minor to engage in prohibited sexual conduct. increase by 4 levels. If the victim had not attained the age of 12 years.C. Commentary Statutory Provision: 18 U. care.S. increase by 2 levels. Application Notes: 1. or supervisory control of the defendant. (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.S. § 2241 or § 2242). 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.S. see Appendix A (Statutory Index).

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

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

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

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

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

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

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

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

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

However. 1201. 2009 GUIDELINES MANUAL §2A4. "serious bodily injury" means conduct other than criminal sexual abuse.1 (First Degree Murder). for purposes of this guideline. 2. Commentary Statutory Provisions: 18 U.1(b)).November 1. – 71 – . or Conspiracy) requires that the court apply any adjustment that can be determined with reasonable certainty. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States. (c) Cross Reference (1) If the victim was killed under circumstances that would constitute murder under 18 U. if the resulting offense level is greater than that determined above. "A dangerous weapon was used" means that a firearm was discharged. Similarly. (d). or otherwise takes such conduct into account. for example. and 24212423. or solicitation to kidnap. or (B) 4 plus the offense level from the offense guideline applicable to that other offense. 2340A. Therefore. the offense referenced under subsection (b)(7) would be the offense of first degree murder.1 (Application Instructions)).C. subsection (b)(7) would reference first degree murder (resulting in an offense level of 43.C.1 applicable to that other offense if such offense guideline includes an adjustment for kidnapping. 1203.S. see Appendix A (Statutory Index). or unlawful restraint. §§ 2241-2244.S.1 (Attempt. 351(b). For additional statutory provision(s). 4. Application Notes: 1. 2251. subject to a possible 3-level reduction under §2X1. abduction. for example. apply §2A1. attempt. §§ 115(b)(2). 1751(b). §2X1. in any other case. which is taken into account in the specific offense characteristic under subsection (b)(5). 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. "Sexually exploited" includes offenses set forth in 18 U.C. In the case of a conspiracy. Solicitation. or a "firearm" or "dangerous weapon" was "otherwise used" (as defined in the Commentary to §1B1.S. 3. For purposes of this guideline— Definitions of "serious bodily injury" and "permanent or life-threatening bodily injury" are found in the Commentary to §1B1. if an offense involved conspiracy to kidnap for the purpose of committing murder. but in no event greater than level 43.1 (Application Instructions).

2002 (see Appendix C. 2003 (see Appendix C. see Appendix A (Statutory Index). 1997 (see Appendix C. kidnapping that occurs as part of or to facilitate the commission of another offense (often. but need not have been convicted. Subsections (a) and (b)(5). amendment 445). possessed. October 27. November 1.C. 1991 (see Appendix C. 2009 Background: Federal kidnapping cases generally encompass three categories of conduct: limited duration kidnapping where the victim is released unharmed. state. amendment 545). November 1. amendment 650). November 1. amendment 637). amendment 651). effective May 30.C. §2A4. Abduction. 1993 (see Appendix C. and kidnapping for ransom or political demand. Section 401 of Public Law 101-647 amended 18 U.S. Application Note: 1. or disposed of with knowledge of its criminal origins. Demanding or Receiving Ransom Money (a) (b) Base Offense Level: 23 Cross Reference (1) If the defendant was a participant in the kidnapping offense. § 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. Where the guidelines did not already take into account the conduct identified by the Act. 1989 (see Appendix C. An enhancement is provided when the offense is committed for ransom (subsection (b)(1)) or involves another federal. amendment 96). November 1. Historical Note: Effective November 1. requiring that ransom money be received. 1202. Unlawful Restraint). sexual assault). 1987. 2003 (see Appendix C. amendment 363). – 72 – .C. apply §2A4. May 30. § 1202.2.S. or local offense that results in a greater offense level (subsections (b)(7) and (c)(1)).§2A4. amendment 478). and the deletion of subsection (b)(4)(C). §§ 876. November 1. Commentary Statutory Provisions: 18 U. The guideline contains an adjustment for the length of time that the victim was detained. Amended effective November 1. implement the directive to the Commission in section 104 of Public Law 108–21.1 (Kidnapping.S. additional specific offense characteristics have been provided. 1992 (see Appendix C. 2003.1 GUIDELINES M ANUAL November 1. A "participant" is a person who is criminally responsible for the commission of the offense. Background: This section specifically includes conduct prohibited by 18 U. 877. The adjustment recognizes the increased suffering involved in lengthy kidnappings and provides an incentive to release the victim. For additional statutory provision(s).

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

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

If (A) the offense involved more than two threats. § 223(a)(1)(C). 2006 (see Appendix C. Commentary Statutory Provision: 49 U. amendment 534). November 1. increase by 2 levels.S. increase by 6 levels.C. (2) – 75 – . amendment 549). 1997 (see Appendix C. amendment 65). 1995 (see Appendix C. or (E) that did not involve a threat to injure a person or property. (D). § 46506 (formerly 49 U.C. or 6. THREATENING OR HARASSING COMMUNICATIONS. Amended effective November 1.1 §2A5. Threatening or Harassing Communications.3.C. November 1. (b) Specific Offense Characteristics (1) If the offense involved any conduct evidencing an intent to carry out such threat. "Underlying offense" refers to the offense listed in 49 U.S. amendment 98). § 46506 of which the defendant is convicted. Historical Note: Effective October 15. § 1521 and the offense involved more than two false liens or encumbrances. STALKING. if the defendant is convicted of an offense under 47 U. HOAXES.C. 2. § 1472(k)(1)). Committing Certain Crimes Aboard Aircraft (a) Base Offense Level: The offense level applicable to the underlying offense. §2A6. Application Notes: 1. an upward departure may be warranted. False Liens (a) Base Offense Level: (1) (2) 12. 1987. AND DOMESTIC VIOLENCE Historical Note: Effective November 1.1. or (B) the defendant is convicted under 18 U. amendment 686). 1988 (see Appendix C. 1989 (see Appendix C. If the conduct intentionally or recklessly endangered the safety of the aircraft or passengers.C.November 1.S.S. * * * * * 6. Amended effective November 1.S. Hoaxes. 2009 GUIDELINES MANUAL §2A6.

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

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

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

C.S.S.S. Historical Note: Effective November 1. amendment 616). For purposes of Chapter Three. § 2261. 2009 (see Appendix C.2 (Aggravated Assault). In contrast. Similarly.2 (Groups of Closely Related Counts).C. if the defendant is convicted of two counts of stalking the defendant’s ex-spouse under 18 U.S. multiple counts cross referenced pursuant to subsection (c) are not to be grouped together if §3D1. 2001 (see Appendix C. For example. amendment 737). an upward departure may be warranted. the counts would group together because Application Note 3 of §2A6. – 79 – .2(d) specifically precludes grouping of counts covered by §2A2.1 (Threatening or Harassing Communications). § 2261A and one count of interstate domestic violence involving an assault of the ex-spouse under 18 U. Part D (Multiple Counts). threatening.1 specifically requires grouping. Multiple counts involving different victims are not to be grouped under §3D1.C. multiple counts involving stalking.C.2 would preclude grouping of the counts under that offense guideline.2 and no other provision of §3D1. § 2262 and the counts are cross referenced to §2A6.2 (Groups of Closely Related Counts) would require grouping of those counts under that offense guideline. November 1. an upward departure may be warranted if the defendant stalked the victim on many occasions over a prolonged period of time. 2009 GUIDELINES MANUAL §2A6. harassing.2 (Groups of Closely Related Counts). the counts probably would not group together inasmuch as §3D1. For example. or assaulting the same victim) and recognizes that the stalking and interstate domestic violence counts are sufficiently related to warrant grouping. This grouping procedure avoids unwarranted "double counting" with the enhancement in subsection (b)(1)(D) (for multiple acts of stalking. Multiple counts that are cross referenced to another offense guideline pursuant to subsection (c) are to be grouped together if §3D1. if the defendant is convicted of multiple counts of assaulting the ex-spouse in violation of a court protection order under 18 U. if the defendant is convicted of multiple counts of threatening an ex-spouse in violation of a court protection order under 18 U. 1997 (see Appendix C. the stalking counts would be grouped together with the interstate domestic violence count. 5.2 would likely apply to require grouping. 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. For example. 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. Amended effective November 1. § 2262 and the counts are cross referenced to §2A2.2 4. threatening. amendment 549).November 1.

000 More than $30. 2001 (see Appendix C. and Other Forms of Theft. 1989 (see Appendix C. AND OFFENSES INVOLVING FRAUD OR DECEIT Introductory Commentary These sections address basic forms of property offenses: theft. Historical Note: Effective November 1. 2009 PART B . and (B) that offense of conviction has a statutory maximum term of imprisonment of 20 years or more. November 1. as well as offenses that arise under the Assimilative Crimes Act. transactions in stolen goods. and simple property damage or destruction. counterfeiting (other than offenses involving altered or counterfeit bearer obligations of the United States).000 More than $1. Part K (Offenses Involving Public Safety)). or 6. These guidelines apply to offenses prosecuted under a wide variety of federal statutes. embezzlement.000.000 More than $70. Forgery.1.000 More than $200. (2) (b) Specific Offense Characteristics (1) If the loss exceeded $5. amendment 303).§2B1. increase the offense level as follows: Loss (Apply the Greatest) (A) (B) (C) (D) (E) (F) (G) (H) (I) (J) $5. §2B1.000 More than $2. Offenses Involving Stolen Property.000 More than $400.000.000 More than $120. 1987. forgery.BASIC ECONOMIC OFFENSES 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 . Larceny. Embezzlement. RECEIPT OF STOLEN PROPERTY. EMBEZZLEMENT. Fraud and Deceit. (Arson is dealt with separately in Chapter Two.1 GUIDELINES M ANUAL November 1.000 More than $10.500. Amended effective November 1. insider trading. if (A) the defendant was convicted of an offense referenced to this guideline.000 or less More than $5. PROPERTY DESTRUCTION. THEFT. Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States (a) Base Offense Level: (1) 7. fraud. Property Damage or Destruction. otherwise. amendment 617).

If (A) the defendant relocated.000 More than $20. property from a national cemetery or veterans’ memorial. involved 50 or more victims. (K) (L) (M) (N) (O) (P) (2) More than $7. increase by 2 levels. destruction of. If the offense involved (A) a misrepresentation that the defendant was acting on behalf of a charitable.000 More than $50.000 More than $400.000.000 More than $100. specific judicial or administrative order. increase to level 10. (B) (C) (3) If the offense involved a theft from the person of another. or (ii) was committed through mass-marketing. or participated in relocating. increase by 2 levels. increase by 2 levels.1 add 20 add 22 add 24 add 26 add 28 add 30. (C) a violation of any prior. § 1037. foreign instrumentality. a fraudulent scheme to another jurisdiction to evade law enforcement or regulatory – 81 – (4) (5) (6) (7) (8) (9) .000. If the offense involved receiving stolen property.000 More than $200. 2009 GUIDELINES MANUAL §2B1. or process not addressed elsewhere in the guidelines. and the defendant was a person in the business of receiving and selling stolen property. or a government agency. damage to. If the offense involved theft of. or involved 250 or more victims. If the offense involved misappropriation of a trade secret and the defendant knew or intended that the offense would benefit a foreign government. decree. increase by 2 levels. If the resulting offense level is less than level 10. educational. injunction. providing. or trafficking in. If (A) the defendant was convicted of an offense under 18 U. increase by 6 levels. or furnishing financial assistance for an institution of higher education. or political organization.000.000. religious.S. and (B) the offense involved obtaining electronic mail addresses through improper means.November 1.000 (Apply the greatest) If the offense— (A) (i) involved 10 or more victims. increase by 2 levels. or foreign agent.C. or (D) a misrepresentation to a consumer in connection with obtaining. increase by 2 levels.000. increase by 2 levels.000. (B) a misrepresentation or other fraudulent action during the course of a bankruptcy proceeding. increase by 4 levels.

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

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

or Destruction of.4 (Arson. 15 U. 80b-6.§2B1.C. 23. or Transportation of Firearms or Ammunition. (B) the defendant was convicted under a statute proscribing false.S. 60123(b). 1031. 29 U. 664. Cultural Heritage Resources.S. Possession. § 2401f. 500. fictitious. 1026. see Appendix A (Statutory Index). 30170. 1831. if the resulting offense level is greater than that determined above.S. 1001-1008.S. Exchange. 662. if the resulting offense level is greater than that determined above. 510. 1028. Damage to. 553(a)(1). Purchase. including destruction of mail. 77e. Unlawful Sale. 1029. and (C) the conduct set forth in the count of conviction establishes an offense specifically covered by another guideline in Chapter Two (Offense Conduct)..C. § 1342. "Financial institution" includes any institution described in 18 U. § 1007. Application Notes: 1. is involved). 49 U. 6c. 1037. 2113(b). apply §2B1. 77x. (a)(5). 1702. Purchase.S.1 (Unlawful Receipt. any state or foreign bank. or §2K2. or § 1014.C. 13. Prohibited Transactions Involving Explosive Materials). 6o. § 1006. trust company. 1341-1344. § 657. § 20. 471-473. 2009 Materials.C. Transportation. § 501(c). 2701.C. or Destruction of.g. 2312-2317. 6b. For additional statutory provision(s).S. § 78c(a)(11)). 78j. or Receipt of Cultural Heritage Resources). 6821. credit union. §§ 50. 285-289. 1025. 1363. Definitions. §§ 14915.C. Prohibited Transactions Involving Firearms or Ammunition). Cultural Heritage Resources. or Receipt of Cultural Heritage Resources). – 84 – . 2282B. 1832. § 1341. § 1005. If (A) neither subdivision (1) nor (2) of this subsection applies. Exchange.S. Transportation.S. apply that other guideline. 1348. 2282A. 641. 1644. 42 U. 656. 657. § 656.C. as appropriate.5 (Theft of.1 GUIDELINES M ANUAL November 1. 2332b(a)(1). 1361. § 1011. 19 U. 6h. apply §2K1. 225. Unlawful Sale. §§ 6.S. or property damage by use of explosives.—For purposes of this guideline: "Cultural heritage resource" has the meaning given that term in Application Note 1 of the Commentary to §2B1.C. or § 1343).5 (Theft of. 2291. 77q. §§ 38. 1992(a)(1). 18 U. § 1001. 46317(a). If the offense involved a cultural heritage resource. 1030(a)(4)-(5). (2) If the offense involved arson. Property Damage by Use of Explosives). "Equity securities" has the meaning given that term in section 3(a)(11) of the Securities Exchange Act of 1934 (15 U.C. 78ff. 1016-1022. or fraudulent statements or representations generally (e. Damage to. 659. 1010-1014.S. 1369. 1703 (if vandalism or malicious mischief. 18 U. 1040. 1350. 1708. (3) (4) Commentary Statutory Provisions: 7 U.C.

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

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

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

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

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

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

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

(B) (C) 9. and American Samoa. do not apply that adjustment under §3C1. or both.— (i) Subsection (b)(8)(A). "United States" means each of the 50 states.S. Guam. and (II) a scanning receiver referred to in 18 U.S. "Scanning receiver" has the meaning given that term in 18 U. "Counterfeit access device" (i) has the meaning given that term in 18 U. the Commonwealth of Puerto Rico.S.C. corporate shells.C.— (A) Definitions. the District of Columbia. Application of Subsection (b)(10).S.C. § 1029(a)(8).3. § 1029(e)(8).—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. locating the main office of the scheme in one jurisdiction but locating soliciting operations in another jurisdiction ordinarily indicates sophisticated means. Subsection (b)(8)(B) and (C).1. § 1029(e)(6).1. – 92 – .3 (Abuse of Position of Trust or Use of Special Skill). "sophisticated means" means especially complex or especially intricate offense conduct pertaining to the execution or concealment of an offense.§2B1. Sophisticated Means Enhancement under Subsection (b)(9). Non-Applicability of Chapter Three Adjustment. § 1028(d)(1).C. through the use of fictitious entities. "Device-making equipment" (i) has the meaning given that term in 18 U.S. § 1029(e)(2).S. the Northern Mariana Islands.C.1. and (ii) includes (I) any hardware or software that has been configured as described in 18 U.—If the conduct that forms the basis for an enhancement under subsection (b)(8)(A) is the only conduct that forms the basis for an adjustment under §3B1.— (A) Definition of United States. Sophisticated Means Enhancement. (ii) 8.1 (Obstructing or Impeding the Administration of Justice). do not apply that adjustment under §3B1.C.1 (E) GUIDELINES M ANUAL November 1. do not apply that adjustment under §3C1.—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. For example. § 1029(a)(9).—For purposes of subsection (b)(9)(B). or offshore financial accounts also ordinarily indicates sophisticated means. Conduct such as hiding assets or transactions. the United States Virgin Islands. and (ii) includes a telecommunications instrument that has been modified or altered to obtain unauthorized use of telecommunications service. 2009 Non-Applicability of Chapter Three Adjustments.—For purposes of subsection (b)(9)(C). in a telemarketing scheme.—For purposes of subsection (b)(10): "Authentication feature" has the meaning given that term in 18 U.

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

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

000 employees was substantially endangered: (I) The organization became insolvent or suffered a substantial reduction in the value of its assets. The organization suffered a substantial reduction in the value of its equity securities or the value of its employee retirement accounts. mass transit.— (A) Definitions. the solvency or financial security of an organization that was a publicly traded company or that had more than 1.1 (ii) In General.—The following is a non-exhaustive list of factors that the court shall consider in determining whether.C.— (A) Definitions. (II) (III) (IV) (V) (VI) 13. and delivery systems. The liquidity of the equity securities of a publicly traded company was substantially endangered. 11. Examples of critical infrastructures include gas and oil production. storage. and rescue services). (B) Subsection (b)(16)(A)(iii). "Government entity" has the meaning given that term in 18 U. § 1030(e)(9). or 13 of the Bankruptcy Code (title 11. as a result of the offense. and – 95 – . telecommunications networks.—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). national security. United States Code).S.S. the company was delisted from its primary listing exchange. or trading of the company’s securities was halted for more than one full trading day. § 1 et seq. financing and banking systems. emergency services (including medical. The organization substantially reduced its employee pension benefits.C. 14. fire. For example. Application of Subsection (b)(16).—For purposes of subsection (b)(17): "Commodities law" means (i) the Commodity Exchange Act (7 U. and government operations that provide essential services to the public. economic security. do not apply the enhancement under subsection (b)(14)(B).). electrical power delivery systems. The organization filed for bankruptcy under Chapters 7. A critical infrastructure may be publicly or privately owned.—For purposes of subsection (b)(16): "Critical infrastructure" means systems and assets vital to national defense. The organization substantially reduced its workforce. police. public health or safety. Application of Subsection (b)(17). or any combination of those matters.November 1. and airports). airlines. water supply systems. transportation systems and services (including highways. 2009 GUIDELINES MANUAL §2B1.

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

19. Multiple-Count Indictments. or financial records). See Application Note 4 of the Commentary to §2X1. § 1341 for fraud involving the deprivation of the intangible right of honest services. as a result of that offense.S. Solicitation. or Conspiracy) whether the conviction is for the substantive offense.—Some fraudulent schemes may result in multiple-count indictments. See Chapter Three. or severe emotional trauma.1 (Offering. a primary objective of the offense was to inflict emotional harm.S. § 225 (relating to a continuing financial crimes enterprise). or conspiracy). non-monetary objective. Receiving or Trafficking in Smuggled Property) likely would be more apt. or Receiving a Bribe. For example. Fraud involving the Deprivation of the Intangible Right to Honest Services of Public Officials.— (A) Upward Departure Considerations. psychological harm. The cumulative loss produced by a common scheme or course of conduct should be used in determining the offense level. solicitation. the offense caused physical harm. An upward departure also would be warranted. The offense caused or risked substantial non-monetary harm. Soliciting. Giving. the inchoate offense (attempt. an upward departure may be warranted. Continuing Financial Crimes Enterprise. and false statements to a customs officer. 18.1 (Attempt.C.November 1. Departure Considerations. or other relatively broad statutes.1 although the offense involves fraudulent conduct that is also covered by a more specific statute. (ii) . for example. the mail or wire fraud statutes. are used primarily as jurisdictional bases for the prosecution of other offenses. depending on the technical elements of the offense. In such cases. For example. death resulted. An upward departure would be warranted. the offense level is that applicable to the underlying series of offenses comprising the "continuing financial crimes enterprise". Examples include false entries regarding currency transactions.. for which §2T3.1. the theft of personal information such as medical. Conspiracy to Defraud by Interference with Governmental Functions). Partially Completed Offenses. 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. regardless of the number of counts of conviction.C. or resulted in a substantial invasion of a privacy interest (through.C. the offense level is to be determined in accordance with the provisions of §2X1. an offense involving a completed theft or fraud that is part of a larger. if.—In the case of a partially completed offense (e. – 97 – 17.—There may be cases in which the offense level determined under this guideline substantially understates the seriousness of the offense.g.S. for example. educational. For example. § 1030 offense involving damage to a protected computer. Extortion Under Color of Official Right. Such a case would be more aptly sentenced pursuant to §2C1. 2009 GUIDELINES MANUAL §2B1.1 (Evading Import Duties or Restrictions (Smuggling). for which §2S1. in an 18 U.3 (Structuring Transactions to Evade Reporting Requirements) likely would be more apt.—If the defendant is convicted under 18 U. Part D (Multiple Counts). 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. attempted theft or fraud). In certain other cases. 16. or both.

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

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

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

amendment 9). 1993 (see Appendix C. 2006 (see Appendix C. 2009 (see Appendix C. § 240. February 6. amendment 576). November 1.1 effective November 1. amendments 102-104). and 674). national public health or safety. amendment 8). amendment 551). Transmitting. November 1. 2008 (see Appendix C. Amended effective June 15. 317. amendments 699. November 1. 666. Property Destruction. 1988 (see Appendix C. national economic security. November 1. amendment 10). Commentary Statutory Provisions: 15 U. 1987.November 1. was deleted by consolidation with §2B1. amendments 99-101 and 303). amendments 726. amendments 685 and 696). amended effective June 15. amendment 714). November 1. Application Note: 1. amendments 364 and 393). amendment 617).—Section 3B1. effective November 1. 1998 (see Appendix C. amendment 617). June 15. and November 1. amended effective January 15. November 1. 2003 (see Appendix C. 654.1 effective November 1. November 1. amendment 679). 638. Transferring. 1991 (see Appendix C. 1997 (see Appendix C. amendments 481 and 482). November 1.F. 1990 (see Appendix C. and 661). increase by the number of levels from the table in §2B1. and 702). Transporting.3. November 1. §2B1. [Deleted] Historical Note: Section 2B1.10b-5. effective November 1. 1988 (see Appendix C. 1989 (see Appendix C. November 1. amendment 551). 1998 (see Appendix C. see Appendix A (Statutory Index). November 1. 2003 (see Appendix C. Examples might include a corporate president or an attorney who misused information – 101 – . November 1. 2000 (see Appendix C. Application of Subsection of §3B1. §2B1. November 1. amendments 312 and 361). amendments 312 and 313).000. 1989 (see Appendix C. For additional statutory provision(s). 2008 (see Appendix C. 733.2. January 25. 655. 1987.3. 1990 (see Appendix C. November 1. 2005 (see Appendix C. November 1. Insider Trading (a) (b) Base Offense Level: 8 Specific Offense Characteristic (1) If the gain resulting from the offense exceeded $5. or a combination of any of these matters. amendment 647). amendments 719 and 725). or Possessing Stolen Property). 2001 (see Appendix C. 1993 (see Appendix C. November 1. amendments 665. amendment 576). amendment 481).R. 1988 (see Appendix C. was deleted by consolidation with §2B1. amendments 637.2 (Receiving. amendment 7).1 (Theft.3 (Abuse of Position of Trust or Use of Special Skill) should be applied only if the defendant occupied and abused a position of special trust. November 1. November 1.4 have on national security. 2001 (see Appendix C.4. 1987. § 78j and 17 C. and 646). November 1.C. §2B1.S. amendments 312. 700. 1990 (see Appendix C.3 (Property Damage or Destruction). 2009 GUIDELINES MANUAL §2B1. 2007 (see Appendix C. and 361). 1988 (see Appendix C. 1995 (see Appendix C. amendment 512). [Deleted] Historical Note: Section 2B1. November 1. 2004 (see Appendix C. and Fraud) corresponding to that amount. amendments 653. November 1. amendment 596). 2002 (see Appendix C. Historical Note: Effective November 1. 1997 (see Appendix C. and 737).

Historical Note: Effective November 1. Certain other offenses.5. Cultural Heritage Resources. e. or (B) exceeded $5. increase by 2 levels.. Insider trading is treated essentially as a sophisticated fraud. Damage to. was on. Exchange. (B) a National Historic Landmark. is employed instead of the victims’ losses. or (G) the World Heritage List. prior to the offense.1 (Theft. amendment 617). (F) designated archaeological or ethnological material. or that. the total increase in value realized through trading in securities by the defendant and persons acting in concert with the defendant or to whom the defendant provided inside information. (C) cultural patrimony. If the offense was committed for pecuniary gain or otherwise involved a commercial purpose. (C) a national monument or national memorial.4 GUIDELINES M ANUAL November 1. (D) a sacred object. Purchase. (2) (3) (4) (5) – 102 – . or Destruction of..C. § 13(e). 7 U. 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. increase by 2 levels. (E) cultural property.§2B1. Because the victims and their losses are difficult if not impossible to identify. Theft of.000.000 but did not exceed $5. Unlawful Sale. Property Destruction.S. or (G) a pre-Columbian monumental or architectural sculpture or mural. increase by 2 levels. 2009 regarding a planned but unannounced takeover attempt. that involve misuse of inside information for personal gain also appropriately may be covered by this guideline. the gain. increase by 2 levels. (E) a national cemetery or veterans’ memorial. If the offense involved a cultural heritage resource from.000. It typically would not apply to an ordinary "tippee". If the defendant engaged in a pattern of misconduct involving cultural heritage resources. (D) a national marine sanctuary. increase by 1 level. (B) a funerary object. or in the custody of (A) the national park system. If the offense involved a cultural heritage resource constituting (A) human remains. Transportation. Background: This guideline applies to certain violations of Rule 10b-5 that are commonly referred to as "insider trading". i.e. 2001 (see Appendix C. (F) a museum. §2B1. in.g. and Fraud) corresponding to that amount. increase by the number of levels from the table in §2B1.

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

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

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

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

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

000. If a dangerous weapon (including a firearm) was possessed. increase by 2 levels. or if the taking of such item was an object of the offense.000 More than $800. 2005 (see Appendix C.000 More than $1. increase by 1 level.2.6 GUIDELINES M ANUAL November 1.500. if a structure other than a residence. Such offenses are excluded from application of those chapters because the guideline sentence for each offense is determined only by the relevant statute. increase the offense level as follows: Loss (Apply the Greatest) (A) (B) (C) (D) (E) (F) (G) (H) (I) (3) $2. destructive device. Burglary of a Residence or a Structure Other than a Residence (a) Base Offense Level: (1) (2) (b) 17. increase by 2 levels. Specific Offense Characteristics (1) (2) If the offense involved more than minimal planning. 2009 guideline.1 (Procedure for Determining Offense Level on Multiple Counts) and 5G1.000 Increase in Level no increase add 1 add 2 add 3 add 4 add 5 add 6 add 7 add 8. (4) Commentary – 108 – . If the loss exceeded $2. Historical Note: Effective November 1. See §§3D1.500.§2B1.500 or less More than $2.1.000 More than $2. or controlled substance was taken. * * * * * 2. or 12.000 More than $5.500. amendment 677). If a firearm. BURGLARY AND TRESPASS §2B2.000 More than $50.500 More than $10.000 More than $250. if a residence.

effective November 1. For example.S. amendments 105 and 106). Historical Note: Effective November 1. 2. was deleted by consolidation with §2B2.2. "Loss" means the value of the property taken. 1990 (see Appendix C.3 Statutory Provisions: 18 U. (C) on a vessel or aircraft of the United States. [Deleted] Historical Note: Section 2B2.C. checking the area to make sure no witnesses were present would not alone constitute more than minimal planning. amendment 13). obtaining building plans to plot a particular course of entry. November 1.3. "Firearm. Weapon possession. 1988 (see Appendix C. 2115. Subsection (b)(4) does not apply to possession of a dangerous weapon (including a firearm) that was stolen during the course of the offense." and "dangerous weapon" are defined in the Commentary to §1B1.November 1. amendment 11). is a specific offense characteristic because use of a weapon (including to threaten) ordinarily would make the offense robbery. other than conduct to which §3C1. 1993 (see Appendix C.1 effective November 1. 1987." "destructive device. 2113(a). Amended effective January 15.1 (Application Instructions). November 1. 2117. amendments 315 and 361). 2009 GUIDELINES MANUAL §2B2. 1989 (see Appendix C.—"More than minimal planning" means more planning than is typical for commission of the offense in a simple form. Application Notes: 1. §2B2. (F) at – 109 – . 1989 (see Appendix C. November 1. (E) at a residence. or destroyed.1 (Obstructing or Impeding the Administration of Justice) applies. amendments 315 and 361). (B) at a nuclear energy facility. or disabling an alarm system.2 (Burglary of Other Structures). 1987. amended effective June 15. 1990 (see Appendix C. For additional statutory provision(s). Trespass (a) (b) Base Offense Level: 4 Specific Offense Characteristics (1) If the trespass occurred (A) at a secure government facility. amendment 481). More than Minimal Planning. §2B2. By contrast. see Appendix A (Statutory Index). amendment 481). Weapon use would be a ground for upward departure. and November 1. 2118(b). amendment 107). damaged. 1993 (see Appendix C. 1988 (see Appendix C. June 15. 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. amendment 617). November 1. unless it is clear that each instance was purely opportune. but not use. would constitute more than minimal planning. November 1. (D) in a secure area of an airport or a seaport. amendment 12). "More than minimal planning" shall be considered to be present in any case involving repeated acts over a period of time. 2001 (see Appendix C. 3. §§ 1153. 1988 (see Appendix C. "More than minimal planning" also exists if significant affirmative steps were taken to conceal the offense. 4.

"Critical infrastructure" means systems and assets vital to national defense. 42 U. telecommunications networks. or (ii) by or for a government entity in furtherance of the administration of justice. whether or not a criminal charge was brought or a conviction was obtained. 38 U. For additional statutory provision(s). Property Destruction. § 7270b. (3) (c) Cross Reference (1) If the offense was committed with the intent to commit a felony offense.000 but did not exceed $5. Commentary Statutory Provisions: 18 U.C. state.000. financing and banking systems. (2) If a dangerous weapon (including a firearm) was possessed. – 110 – .000.1 (Application Instructions). economic security. storage.S. fire. mass transit. Examples of critical infrastructures include gas and oil production.§2B2. Definitions. increase by 2 levels. national security. transportation systems and services (including highways. Application Notes: 1. or (G) on a computer system used (i) to maintain or operate a critical infrastructure. Solicitation. § 2413. police. or national security. national defense. if the resulting offense level is greater than that determined above.S. and Fraud) corresponding to that amount. 2199. "Felony offense" means any offense (federal. 2009 Arlington National Cemetery or a cemetery under the control of the National Cemetery Administration. and rescue services).C. electrical power delivery systems. increase by the number of levels from the table in §2B1.1 (Theft. or Conspiracy) in respect to that felony offense.3 GUIDELINES M ANUAL November 1. increase by 2 levels. public health or safety. water supply systems. or local) punishable by imprisonment for a term exceeding one year. and (B) the loss resulting from the invasion (i) exceeded $2. 1036. and government operations that provide essential services to the public. "Firearm" and "dangerous weapon" are defined in the Commentary to §1B1. see Appendix A (Statutory Index). apply §2X1.1 (Attempt. airlines. and airports). and delivery systems. or any combination of those matters.C.S. or (ii) exceeded $5.—For purposes of this guideline: "Airport" has the meaning given that term in section 47102 of title 49. §§ 1030(a)(3). increase by 1 level. A critical infrastructure may be publicly or privately owned. emergency services (including medical. If (A) the offense involved invasion of a protected computer. United States Code.

amendment 654). If any victim sustained bodily injury. (D) if a dangerous weapon was otherwise used. (A) If a firearm was discharged. 2007 (see Appendix C. amendments 699 and 703). amendment 617). increase by 2 levels. increase by 5 levels. November 1. "Protected computer" means a computer described in 18 U. 1987.C. "Seaport" has the meaning given that term in 18 U. November 1. increase by 3 levels. or if the taking of such property was an object of the offense. 2001 (see Appendix C.S. 2003 (see Appendix C. amendment 637). and Fraud). (C) if a firearm was brandished or possessed.S. 2002 (see Appendix C.S.1 "Government entity" has the meaning given that term in 18 U. November 1. EXTORTION. AND BLACKMAIL §2B3. Robbery (a) (b) Base Offense Level: 20 Specific Offense Characteristics (1) If the property of a financial institution or post office was taken. § 1030(e)(9). (E) if a dangerous weapon was brandished or possessed. 1997 (see Appendix C. amendments 108 and 109). ROBBERY. increase by 7 levels. or (F) if a threat of death was made. 1989 (see Appendix C.C. increase by 6 levels. amendment 551). increase by 2 levels. 2009 GUIDELINES MANUAL §2B3. Valuation of loss is discussed in the Commentary to §2B1. November 1. 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 .1 (Theft. Additionally. Historical Note: Effective November 1. § 26. November 1. The trespass section provides an enhancement for offenses involving trespass on secure government installations (such as nuclear facilities) and other locations (such as airports and seaports) to protect a significant federal interest. 2. Background: Most trespasses punishable under federal law involve federal lands or property.November 1.C. § 1030(e)(2)(A) or (B). increase by 4 levels. (B) if a firearm was otherwise used. an enhancement is provided for trespass at a residence. Property Destruction. Amended effective November 1. * * * * * 3.1.

000.000 More than $250. that the cumulative adjustments from (2) and (3) shall not exceed 11 levels. §§ 1951. increase by 2 levels.000 Increase in Level no increase add 1 add 2 add 3 add 4 add 5 add 6 add 7. (E) Provided. increase by 2 levels. 2114. or controlled substance was taken.000 More than $2. 2009 Permanent or Life-Threatening Bodily Injury add 6 If the degree of injury is between that specified in subdivisions (A) and (B). increase the offense level as follows: Loss (Apply the Greatest) (A) (B) (C) (D) (E) (F) (G) (H) (c) $10. add 5 levels. increase by 1 level.000 More than $50. For additional statutory provision(s). § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States. add 3 levels. increase by 4 levels. If the loss exceeded $10.000 More than $5.000 More than $1. see Appendix A (Statutory Index).000 or less More than $10.000. 2113.C.1 (C) (D) GUIDELINES M ANUAL November 1.1 (First Degree Murder).500. If the offense involved carjacking. apply §2A1.S.C. Commentary Statutory Provisions: 18 U. (4) (A) If any person was abducted to facilitate commission of the offense or to facilitate escape.§2B3. or if the taking of such item was an object of the offense.500. or If the degree of injury is between that specified in subdivisions (B) and (C). 2119. – 112 – .S. however. 2118(a).000 More than $800. (5) (6) (7) Cross Reference (1) If a victim was killed under circumstances that would constitute murder under 18 U. If a firearm. or (B) if any person was physically restrained to facilitate commission of the offense or to facilitate escape. destructive device.

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

(IV) product tampering. bodily injury. November 1. 315. (A)(i) If a firearm was discharged. 2009 The guideline provides an enhancement for robberies where a victim was forced to accompany the defendant to another location. (iv) if a dangerous weapon was otherwise used. increase by 7 levels. amendments 545 and 552). increase by 4 levels. §2B3.§2B3. national defense.1 GUIDELINES M ANUAL November 1. increase the offense level according to the seriousness of the injury: Degree of Bodily Injury (A) (B) (C) (D) Increase in Level add 2 add 4 add 6 (2) (3) Bodily Injury Serious Bodily Injury Permanent or Life-Threatening Bodily Injury If the degree of injury is between that specified in subdivisions (A) and (B). November 1. or kidnapping. bound. 2000 (see Appendix C. amendment 483). Amended effective June 15. or (B) If (i) the offense involved preparation to carry out a threat of (I) death. 1987.2. amendments 314. add 3 levels. November 1.1(b)(7). 1988 (see Appendix C. increase by the corresponding number of levels from the table in §2B3. November 1. or (ii) the participant(s) otherwise demonstrated the ability to carry out a threat described in any of subdivisions (i)(I) through (i)(V). amendment 601). amendments 110 and 111). 2001 (see Appendix C. increase by 2 levels. amendments 14 and 15). or by or for a government entity in furtherance of the administration of justice.000. 1991 (see Appendix C. November 1. Historical Note: Effective November 1. November 1. (iii) if a firearm was brandished or possessed. increase by 3 levels. amendment 617). If the greater of the amount demanded or the loss to the victim exceeded $10. (ii) if a firearm was otherwise used. or (v) if a dangerous weapon was brandished or possessed. or national security. November 1. 1990 (see Appendix C. or (V) damage to a computer system used to maintain or operate a critical infrastructure. increase by 5 levels. 1997 (see Appendix C. (III) kidnapping. and 361). Extortion by Force or Threat of Injury or Serious Damage (a) (b) Base Offense Level: 18 Specific Offense Characteristics (1) If the offense involved an express or implied threat of death. or was physically restrained by being tied. 1993 (see Appendix C. increase by 6 levels. increase by 3 levels. 1989 (see Appendix C. or – 114 – . (4) If any victim sustained bodily injury. or locked up. (II) serious bodily injury. amendment 365).

and rescue services).1 (Application Instructions). public health or safety. "Critical infrastructure" means systems and assets vital to national defense.C. however." "permanent or life-threatening bodily injury.2 (E) If the degree of injury is between that specified in subdivisions (B) and (C). increase by 4 levels. storage. police. emergency services (including medical. Examples of critical infrastructures include gas and oil production. that the cumulative adjustments from (3) and (4) shall not exceed 11 levels. airlines." "dangerous weapon. 1030(a)(7). and government operations that provide essential services to the public. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States." "otherwise used. Provided. add 5 levels. electrical power delivery systems. national security. "Government entity" has the meaning given that term in 18 U. and airports). or any combination of those matters." "physically restrained. mass transit. § 1030(e)(9).C. (2) Commentary Statutory Provisions: 18 U. (5) (A) If any person was abducted to facilitate commission of the offense or to facilitate escape. Application Notes: 1." and "serious bodily injury" have the meaning given those terms in Application Note 1 of the Commentary to §1B1. If the offense was tantamount to attempted murder.S. apply §2A1.1 (First Degree Murder). and delivery systems.S. 877. increase by 2 levels. water supply systems. Attempted Murder) if the resulting offense level is greater than that determined above.C. transportation systems and services (including highways. 876. §§ 875(b)." "firearm. For additional statutory provision(s). economic security. fire. A critical infrastructure may be publicly or privately owned. 2009 GUIDELINES MANUAL §2B3." "bodily injury. – 115 – . 1951.1 (Assault with Intent to Commit Murder. apply §2A2. see Appendix A (Statutory Index)." "brandished. (c) Cross References (1) If a victim was killed under circumstances that would constitute murder under 18 U. or (B) if any person was physically restrained to facilitate commission of the offense or to facilitate escape.—For purposes of this guideline: "Abducted.November 1.S. telecommunications networks. Definitions. financing and banking systems.

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

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. Fraud Involving the Deprivation of the Intangible Right to Honest Services of Public Officials. Extortion Under Color of Official Right. increase by the number of levels from the table in §2B1.C.C.C.S. or (B) exceeded $5. For additional statutory provision(s).3.000 but did not exceed $5. Application Note: 1. or other threats that are less serious than those covered by §2B3. or Receiving a Bribe. (c) Cross References (1) If the offense involved extortion under color of official right. which carry higher maximum sentences. Background: Under 18 U.000. § 873) is defined as a threat to disclose a violation of United States law unless money or some other item of value is given. Conspiracy to Defraud by Interference with Governmental Functions).S. amendment 114).S. "Blackmail" (18 U. 1987. Giving. 1993 (see Appendix C.2. This section applies only to blackmail and similar forms of extortion where there clearly is no threat of violence to person or property. Property Destruction. 1951. * * * * * – 117 – . 2009 GUIDELINES MANUAL §2B3. amendment 617). November 1. increase by 1 level. Historical Note: Effective November 1. amendment 679). If the offense involved extortion by force or threat of injury or serious damage. November 1. Extortionate threats to injure a reputation. November 1. 2005 (see Appendix C. Soliciting.1 (Offering. the maximum term of imprisonment authorized for blackmail is one year. may also be prosecuted under 18 U.2 (Extortion by Force or Threat of Injury or Serious Damage). see Appendix A (Statutory Index). 1989 (see Appendix C.C.S. 875-877. Commentary (2) Statutory Provisions: 18 U. and Fraud) corresponding to that amount.000. 2001 (see Appendix C. §§ 873.1 (Theft. Amended effective November 1. apply §2C1. amendment 479). §§ 875-877. § 873. apply §2B3.3 §2B3.November 1.

Organizations (1) In lieu of the pecuniary loss under subsection (a)(3) of §8C2.000 but did not exceed $5. 26 U. See Part C. §§ 9012(e). Property Destruction. Offenses Involving Public Officials. Application Notes: 1. For additional statutory provision(s). or the offense substantially jeopardized the safety and soundness of a financial institution. 42 U. or local government.S. see Appendix A (Statutory Index). state. 41 U.000. and Fraud) corresponding to that amount.S.4 (Base Fine). 54. §§ 53. increase by the number of levels from the table in §2B1. (B) the value of the benefit received or to be received in return for the unlawful payment.C. GUIDELINES M ANUAL November 1. 49 U. 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. (c) Special Instruction for Fines . 9042(d). 1396h(b)(1). increase to level 24.(2). if any such officials are involved.1 (Theft. (Apply the greater) If— (A) the defendant derived more than $1. (2).000.1 4.§2B4. Commentary Statutory Provisions: 18 U. – 118 – . §§ 1395nn(b)(1). §§ 215. foreign governments.C. This guideline covers commercial bribery offenses and kickbacks that do not involve officials of federal. or (C) the consequential damages resulting from the unlawful payment.C. increase by 4 levels. § 11902. increase by 2 levels. use the greatest of: (A) the value of the unlawful payment.S.C.S. (2) (B) If the resulting offense level determined under subdivision (A) or (B) is less than level 24. or public international organizations.000. increase by 1 level.1. 2009 COMMERCIAL BRIBERY AND KICKBACKS §2B4. or (B) exceeded $5. 224.000 in gross receipts from one or more financial institutions as a result of the offense. 225.S.C.

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

1990 (see Appendix C.C.S. 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. This guideline also applies to violations of 18 U.C. amendments 364 and 422). in a broader form. § 215. amendment 317). Amended effective November 1. and the savings in interest over the life of the loan compared with alternative loan terms. amendment 468). November 1. November 1. in increasing the offense level.C. the instruction to the Commission in section 961(m) of Public Law 101-73. if a bank officer agreed to the offer of a $25.000 to shave points in a nationally televised basketball game.C. If that amount could not be estimated. 1992 (see Appendix C. 1987. 53-54. 41 U. 1997 (see Appendix C. 1991 (see Appendix C. amendment 666). Subsection (b)(2)(A) implements.§2B4. which apply to candidates for President and Vice President whose campaigns are eligible for federal matching funds.S. this guideline considers not only the amount of the bribe but also the value of the action received in return. amendment 617). 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. 2001 (see Appendix C. 2004 (see Appendix C. Historical Note: Effective November 1. would use the greater of the $25. November 1. as well as certain violations of the Interstate Commerce Act. §§ 51.S. November 1. the amount of the bribe would be used to determine the appropriate increase in offense level. the value of the action to the gambler would be the amount that he and his confederates won or stood to gain. November 1.000 bribe to approve a $250. Thus. As with non-commercial bribery. * * * * * – 120 – . § 224. Subsection (b)(2)(B) implements the instruction to the Commission in section 2507 of Public Law 101-647. Violations of 42 U. These offenses are prohibited under 26 U. §§ 1396h(b)(1) and (b)(2) cover the offer or acceptance of a payment for referral to the Medicaid program.S. sports bribery.S. amendments 639 and 646). November 1.000 loan under terms for which the applicant would not otherwise qualify. amendment 553). Similar provisions in 42 U. for example.C. the court.000 bribe. 2002 (see Appendix C.S. involve the offer or acceptance of a payment to refer an individual for services or items paid for under the Medicare program. If a gambler paid a player $5. §§ 1395nn(b)(1) and (b)(2). §§ 9012(e) and 9042(d).1 GUIDELINES M ANUAL November 1. This guideline also applies to violations of law involving bribes and kickbacks in expenses incurred for a presidential nominating convention or presidential election campaign.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. 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). – 121 – . 500. If the resulting offense level is less than level 13.000.—For purposes of this guideline: "Counterfeit" refers to an instrument that has been falsely made. Amended effective November 1. manufactured. amendment 481). Application Notes: 1. Definitions. increase by 2 levels. see Appendix A (Statutory Index). If subsection (b)(2)(A) applies. If a dangerous weapon (including a firearm) was possessed in connection with the offense. §2B5.S. 1003. (ii) genuine United States currency paper from which the ink or other distinctive counterfeit deterrent has been completely or partially removed. 2009 GUIDELINES MANUAL §2B5. an instrument that has been falsely made or manufactured in its entirety is "counterfeit". 501. and the offense level determined under that subsection is less than level 15. COUNTERFEITING AND INFRINGEMENT OF COPYRIGHT OR TRADEMARK Historical Note: Effective November 1. or (B) controlled or possessed (i) counterfeiting paper similar to a distinctive paper. or altered. 477.000 but did not exceed $5. or (B) exceeded $5. increase by the number of levels from the table in §2B1. or (iii) a feature or device essentially identical to a distinctive counterfeit deterrent. (2) (3) (4) (5) Commentary Statutory Provisions: 18 U. 1987. 1993 (see Appendix C. or possessed or had custody of or control over a counterfeiting device or materials used for counterfeiting. If the defendant (A) manufactured or produced any counterfeit obligation or security of the United States. increase to level 13. If any part of the offense was committed outside the United States. increase by 2 levels.1 5.1. increase by 1 level. §§ 470-474A. For additional statutory provision(s). increase to level 15. 476.1 (Theft. For example. and Fraud) corresponding to that amount. increase by 2 levels. Property Destruction.000.C.November 1.

the Northern Mariana Islands. November 1. the instruction to the Commission in section 110512 of Public Law 103-322. an enhancement is provided for a defendant who produces. 2000 (see Appendix C. 3. November 1. increase by 1 level. effective November 1.e. November 1. Subsection (b)(4) implements.C. the United States Virgin Islands. §2B5. food stamps. Background: Possession of counterfeiting devices to copy obligations (including securities) of the United States is treated as an aggravated form of counterfeiting because of the sophistication and planning involved in manufacturing counterfeit obligations and the public policy interest in protecting the integrity of government obligations. that are not made out to a specific payee. – 122 – .1 GUIDELINES M ANUAL November 1. November 1. treasury bills. Inapplicability to Certain Obviously Counterfeit Items.S. postage stamps. in a broader form. §2B5. Guam. amended effective January 15. or (B) exceeded $5. "United States" means each of the fifty states. amendment 731).000. 1993 (see Appendix C. Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States).000.1 effective November 1. 1989 (see Appendix C. respectively. 1997 (see Appendix C.§2B5. 1987. and Fraud) corresponding to that amount. 2001 (see Appendix C. and American Samoa. was deleted by consolidation with §2F1.3. amendment 116). November 1. amendment 17) and November 1.—Subsection (b)(2)(A) does not apply to persons who produce items that are so obviously counterfeit that they are unlikely to be accepted even if subjected to only minimal scrutiny.2. increase by the number of levels from the table in §2B1. 1988 (see Appendix C. Amended effective January 15. amendment 115). i. Property Destruction. the District of Columbia. amendment 481). 2009 (see Appendix C.000 but did not exceed $5. November 1. amendment 554). 1988 (see Appendix C. 2009 "Distinctive counterfeit deterrent" and "distinctive paper" have the meaning given those terms in 18 U. the counterfeit items. Historical Note: Effective November 1. § 474A(c)(2) and (1). [Deleted] Historical Note: Section 2B5. 1987. 1989 (see Appendix C.— This guideline applies to counterfeiting of United States currency and coins. amendment 513). amendments 595 and 605). rather than merely passes. 2.1 (Theft. bearer bonds and other items that generally could be described as bearer obligations of the United States. the Commonwealth of Puerto Rico. November 1. amendment 587). Criminal Infringement of Copyright or Trademark (a) (b) Base Offense Level: 8 Specific Offense Characteristics (1) If the infringement amount (A) exceeded $2.. Applicability to Counterfeit Bearer Obligations of the United States. Similarly.2 (Forgery. 1998 (see Appendix C. amendment 16). amendments 617 and 618). 1995 (see Appendix C.

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

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

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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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§2B5.3

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November 1, 2009

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

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

*

*

*

*

*

6.

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

§2B6.1.

(2)

(3)

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§2B6.1

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

2.

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

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§2C1.1

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November 1, 2009

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

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

§2C1.1.

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

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

(2)

(3)

(4)

(c)

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

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§2C1.1

(2)

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

(3)

(d)

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

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

§2C1.1

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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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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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Soliciting. increase by 2 levels. Fraudulently Misrepresenting Campaign Authority. identifiable non-monetary Federal benefit. amendment 666).6 §2C1. amendment 617).7. was deleted by consolidation with §2C1. amendment 368). amendment 666). [Deleted] Historical Note: Effective November 1. increase by 2 levels. 2009 Historical Note: Effective November 1. or coercion. If the defendant engaged in 30 or more illegal transactions. disbursement. §2C1. 2001 (see Appendix C. amendment 468). donation. November 1. 1991 (see Appendix C.1 effective November 1. apply §2C1. Making. or Expenditure in Violation of the Federal Election Campaign Act. amendment 653). or Receiving a Bribe. or expenditure made or obtained through intimidation. 1987. Giving. November 1. 2001 (see Appendix C. or a government of a foreign country. 2004 (see Appendix C. Property Destruction.6.1 (Offering. (Apply the greater) If the offense involved. (2) If (A) the offense involved the contribution. increase by the number of levels from the table in §2B1. 2003 (see Appendix C.2 effective November 1. solicitation.§2C1. increase by 4 levels. or (B) the defendant committed the offense for the purpose of obtaining a specific.1 (Theft.000. expenditure. directly or indirectly. [Deleted] GUIDELINES M ANUAL November 1. Extortion Under Color of – 136 – . (4) (5) (c) Cross Reference (1) If the offense involved a bribe or gratuity. If the offense involved a contribution. Receiving. 1997 (see Appendix C. solicitation. Amended effective November 1. threat of pecuniary or other harm. increase by 2 levels. 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 $5.8. Donation. 2004 (see Appendix C. and Fraud) corresponding to that amount. or receipt of governmental funds. amendment 617). an illegal transaction made by or received from— (A) (B) (3) a foreign national. §2C1. 1992 (see Appendix C. or Failing to Report a Contribution. amendment 547). November 1. was deleted by consolidation with §2C1. increase by 4 levels. donation.

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

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

and (B) the base offense level under subsection (c) is (i) level 32. decrease by 3 levels. § 960(b)(1). Importing.S. Exporting. OR POSSESSION.C. CONTINUING CRIMINAL ENTERPRISE §2D1.S.S. and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance. (ii) level 34 or level 36. IMPORTING. EXPORTING.C. if the defendant is convicted under 21 U. 2009 GUIDELINES MANUAL §2D1. (b)(2). 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. (b)(1)(B). TRAFFICKING.C. decrease by 4 levels.S. or the offense level specified in the Drug Quantity Table set forth in subsection (c). 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.C. if the defendant is convicted under 21 U. § 960(b)(5).C. or 21 U. or (b)(3).1 PART D .November 1. Attempt or Conspiracy (a) Base Offense Level (Apply the greatest): (1) 43.1.2 (Mitigating Role).C. or 30. if the defendant is convicted under 21 U. or 26. or 38. § 841(b)(1)(A). If the defendant unlawfully imported or exported a controlled substance under circumstances in which (A) an aircraft other than a regularly – 139 – (2) . Amended effective November 1. Unlawful Manufacturing.S. or (iii) level 38. or Trafficking (Including Possession with Intent to Commit These Offenses). amendment 711). (b)(1)(B). § 960(b)(1). and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance. or 21 U. (2) (3) (4) (5) (b) Specific Offense Characteristics (1) If a dangerous weapon (including a firearm) was possessed. if the defendant is convicted under 21 U. or (b)(1)(C). except that if (A) the defendant receives an adjustment under §3B1. § 841(b)(1)(E) or 21 U. 1. UNLAWFUL MANUFACTURING. (b)(2).S. § 960(b)(5).S.OFFENSES INVOLVING DRUGS AND NARCO-TERRORISM Historical Note: Effective November 1. or (b)(1)(C).C.S. § 841(b)(1)(E) or 21 U. § 841(b)(1)(A). decrease by 2 levels. 1987.C. 2007 (see Appendix C. increase by 2 levels. or (b)(3).

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

November 1. if the resulting offense level is greater than that determined above. and (B) the defendant committed. 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). a sexual offense against another individual by distributing. or possessing with intent to manufacture.1(b)(1) shall apply.S. if the resulting offense level is greater than that determined under this guideline. decrease by 2 levels. or attempted or intended to commit. and (ii) created a substantial risk of harm to the life of a minor or an incompetent. – 141 – . increase by 6 levels. 2009 GUIDELINES MANUAL §2D1. § 841(b)(7) (of distributing a controlled substance with intent to commit a crime of violence). If the resulting offense level is less than level 30. (D) If the offense (i) involved the manufacture of amphetamine or methamphetamine.C. apply §2A1. Solicitation. or (II) the environment. increase to level 30.1 (i) the defendant was convicted under 21 U. If the resulting offense level is less than level 27. with or without that individual’s knowledge. (ii) increase by 3 levels.] (d) Cross References (1) If a victim was killed under circumstances that would constitute murder under 18 U. as appropriate. § 860a of manufacturing. a controlled substance to that individual. or attempted to commit.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases).2 (Second Degree Murder). increase to level 27. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States.1 (Attempt. If the defendant was convicted under 21 U. methamphetamine on premises where a minor is present or resides.C. (11) If the defendant meets the criteria set forth in subdivisions (1)-(5) of subsection (a) of §5C1.S. an adjustment under §3A1. [Subsection (c) (Drug Quantity Table) is set forth on the following pages.C.S. (2) (e) Special Instruction (1) If (A) subsection (d)(2) does not apply. apply §2X1. or Conspiracy) in respect to the crime of violence that the defendant committed.1 (First Degree Murder) or §2A1.

At least 5 KG but less than 15 KG of Methamphetamine. At least 50 KG but less than 150 KG of Cocaine. At least 5 KG but less than 15 KG of Amphetamine. M 300 G or more of LSD.000.000.000 units of Flunitrazepam.§2D1. M 30 KG or more of PCP.5 KG but less than 4.5 KG or more of "Ice".5 KG or more of Cocaine Base. 2009 (c) DRUG QUANTITY TABLE Controlled Substances and Quantity* (1) M M Base Offense Level Level 38 30 KG or more of Heroin.5 KG or more of Amphetamine (actual).000 units or more of Schedule I or II Depressants. At least 625. M 30. M 6. M 4. At least 500 G but less than 1.000.000 but less than 30.000 KG of Marihuana.875.000 KG or more of Hashish. M 1. M 15 KG or more of Methamphetamine. or at least 500 G but less than 1. or at least 500 G but less than 1. or 1. At least 1.5 KG of Amphetamine (actual).000. M 30. M 30. or at least 1 KG but less than 3 KG of PCP (actual).000 KG but less than 30.000 units of Schedule I or II Depressants. At least 10 KG but less than 30 KG of PCP. At least 4 KG but less than 12 KG of Fentanyl. At least 15 KG but less than 50 KG of Cocaine.000 units or more of Flunitrazepam. At least 3 KG but less than 10 KG of PCP. 150 KG or more of Cocaine.000 KG but less than 6. M 15 KG or more of Amphetamine. At least 2. or 3 KG or more of PCP (actual). M M M M M (2) M M M M M M M M M M At least 10 KG but less than 30 KG of Heroin. M 3 KG or more of a Fentanyl Analogue.000 KG or more of Marihuana. Level 36 (3) M M M M Level 34 – 142 – .000 KG of Hashish.5 KG of Cocaine Base.875.5 KG of Methamphetamine (actual).5 KG of "Ice". At least 200 KG but less than 600 KG of Hashish Oil.000 but less than 1. At least 10. At least 100 G but less than 300 G of LSD. or 1. At least 1 KG but less than 3 KG of a Fentanyl Analogue.000.000 but less than 30. or 1.000 units or more of Ketamine.000 units of Ketamine. or at least 300 G but less than 1 KG of PCP (actual). At least 10. M 600 KG or more of Hashish Oil.000. At least 3 KG but less than 10 KG of Heroin.5 KG of Cocaine Base.1 GUIDELINES MANUAL November 1. At least 10.5 KG or more of Methamphetamine (actual). or at least 500 G but less than 1. M 12 KG or more of Fentanyl.

or at least 50 G but less than 150 G of "Ice".000 but less than 10. At least 5 KG but less than 15 KG of Cocaine. At least 3.000 KG but less than 10.5 KG of Methamphetamine. At least 20 KG but less than 60 KG of Hashish Oil. At least 10 G but less than 30 G of LSD. At least 350 G but less than 500 G of Amphetamine.000 but less than 3. 2009 GUIDELINES MANUAL §2D1.500 but less than 187.000 units of Schedule I or II Depressants. M At least 600 KG but less than 2. or at least 35 G but less than 50 G of "Ice". Level 32 (5) M M M M M Level 30 M M M M – 143 – . M At least 60 KG but less than 200 KG of Hashish Oil. At least 700 G but less than 1 KG of PCP. M At least 3.000. M At least 3.2 KG of Fentanyl. At least 1.000 units of Schedule I or II Depressants. At least 7 G but less than 10 G of LSD. At least 200 KG but less than 600 KG of Hashish. At least 70 G but less than 100 G of a Fentanyl Analogue. 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. At least 100 G but less than 300 G of a Fentanyl Analogue.000 KG but less than 3.5 KG but less than 5 KG of Amphetamine. At least 280 G but less than 400 G of Fentanyl.5 KG of Amphetamine.2 KG but less than 4 KG of Fentanyl. At least 150 G but less than 500 G of Cocaine Base.000 but less than 3. or at least 35 G but less than 50 G of Amphetamine (actual). At least 400 G but less than 1.000.000.000 but less than 10.000. M At least 1.000 KG of Hashish. M At least 3. or at least 100 G but less than 300 G of PCP (actual).000 units of Flunitrazepam. or at least 150 G but less than 500 G of Amphetamine (actual).000 KG of Marihuana. M At least 187. M At least 30 G but less than 100 G of LSD. At least 50 G but less than 150 G of Cocaine Base.5 KG but less than 5 KG of Methamphetamine.000 units of Ketamine. At least 1. At least 1 KG but less than 3 KG of PCP. At least 62.November 1. or at least 150 G but less than 500 G of Methamphetamine (actual). At least 500 G but less than 1.000. or at least 150 G but less than 500 G of "Ice".000.000 units of Ketamine. or at least 50 G but less than 150 G of Amphetamine (actual). M At least 1.000. At least 1.000. At least 700 G but less than 1 KG of Heroin.000 KG of Marihuana. M At least 300 G but less than 1 KG of a Fentanyl Analogue.500 but less than 625.5 KG but less than 5 KG of Cocaine. or at least 70 G but less than 100 G of PCP (actual).1 At least 1. or at least 35 G but less than 50 G of Methamphetamine (actual). At least 500 G but less than 1. At least 350 G but less than 500 G of Methamphetamine.500 units of Flunitrazepam. or at least 50 G but less than 150 G of Methamphetamine (actual).

or at least 20 G but less than 35 G of Amphetamine (actual). At least 43. M At least 40 G but less than 160 G of Fentanyl.000 but less than 400. M At least 100 G but less than 400 G of PCP.000 units of Ketamine. M At least 10 G but less than 40 G of a Fentanyl Analogue.000 KG of Marihuana. At least 8 KG but less than 14 KG of Hashish Oil. At least 700.000 units of Schedule III Hydrocodone. At least 160 G but less than 280 G of Fentanyl.500 units of Flunitrazepam.§2D1.000 or more units of Schedule III Hydrocodone. At least 200 G but less than 350 G of Methamphetamine.000 units of Schedule I or II Depressants. 700.000. At least 700.000 but less than 700.000 units of Schedule III Hydrocodone. or at least 5 G but less than 20 G of Methamphetamine (actual).250 but less than 25. M At least 100.000 units of Schedule I or II Depressants. or at least 20 G but less than 35 G of Methamphetamine (actual). M At least 1 G but less than 4 G of LSD. M At least 50 G but less than 200 G of Methamphetamine. or at least 20 G but less than 35 G of "Ice". At least 25.750 but less than 62. M At least 100 KG but less than 400 KG of Marihuana. At least 400. M At least 20 KG but less than 80 KG of Hashish. 2009 At least 700 KG but less than 1. At least 400. or at least 5 G but less than 20 G of Amphetamine (actual).000 but less than 400. M At least 100.000. M At least 20 G but less than 35 G of Cocaine Base.000 units of Ketamine.000 but less than 400.5 KG of Cocaine.000 but less than 700.000 units of Schedule I or II Depressants. At least 40 G but less than 70 G of a Fentanyl Analogue. At least 35 G but less than 50 G of Cocaine Base.750 units of Flunitrazepam.000 but less than 1. M At least 100. At least 2 KG but less than 3. At least 500 G but less than 2 KG of Cocaine. At least 200 G but less than 350 G of Amphetamine. M At least 6. At least 400 G but less than 700 G of Heroin. or at least 5 G but less than 20 G of "Ice". or at least 10 G but less than 40 G of PCP (actual). At least 80 KG but less than 140 KG of Hashish.1 M M M M M M M GUIDELINES MANUAL November 1. At least 400 G but less than 700 G of PCP.000 but less than 700. At least 140 KG but less than 200 KG of Hashish. or at least 40 G but less than 70 G of PCP (actual). M At least 50 G but less than 200 G of Amphetamine. At least 400 KG but less than 700 KG of Marihuana. At least 4 G but less than 7 G of LSD.000 but less than 43.000 units of Ketamine.000 units of Flunitrazepam. M At least 2 KG but less than 8 KG of Hashish Oil. M M Level 26 – 144 – . (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 14 KG but less than 20 KG of Hashish Oil.000 but less than 1. At least 400.

000 but less than 80. or at least 3 G but less than 4 G of "Ice". At least 32 G but less than 40 G of Fentanyl. At least 80 G but less than 100 G of PCP. At least 80 KG but less than 100 KG of Marihuana.000 but less than 100.000 units of Ketamine.000 units of Schedule I or II Depressants.000 units of Schedule III Hydrocodone. At least 5 G but less than 20 G of Cocaine Base. At least 60. or at least 8 G but less than 10 G of PCP (actual). M At least 20 G but less than 30 G of Methamphetamine. or at least 6 G but less than 8 G of PCP (actual). At least 80. At least 60.000 units of Schedule I or II Depressants.November 1. or at least 4 G but less than 5 G of Methamphetamine (actual).000 but less than 80.000 units of Ketamine. 2009 GUIDELINES MANUAL §2D1.6 KG of Hashish Oil.000 but less than 100. At least 60 KG but less than 80 KG of Marihuana. At least 8 G but less than 10 G of a Fentanyl Analogue. At least 3. At least 400 G but less than 500 G of Cocaine. or at least 3 G but less than 4 G of Methamphetamine (actual). At least 1. At least 30 G but less than 40 G of Methamphetamine. At least 80. At least 6 G but less than 8 G of a Fentanyl Analogue. (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.000 units of Flunitrazepam. At least 16 KG but less than 20 KG of Hashish. At least 600 MG but less than 800 MG of LSD. or at least 4 G but less than 6 G of PCP (actual). At least 40 G but less than 50 G of Methamphetamine.2 KG but less than 1. At least 1.250 units of Flunitrazepam.750 but less than 5. At least 5. At least 4 G but less than 5 G of Cocaine Base. At least 60 G but less than 80 G of Heroin. At least 300 G but less than 400 G of Cocaine.000 units of Schedule III Hydrocodone.1 Level 24 (8) M M M M M M M M M M M M M M M M At least 80 G but less than 100 G of Heroin. At least 60. or at least 4 G but less than 5 G of Amphetamine (actual). At least 60 G but less than 80 G of PCP. M At least 40 G but less than 60 G of PCP. Level 20 – 145 – . At least 40 G but less than 50 G of Amphetamine. M At least 200 G but less than 300 G of Cocaine. or at least 4 G but less than 5 G of "Ice". or at least 2 G but less than 3 G of Methamphetamine (actual).000 but less than 100. or at least 3 G but less than 4 G of Amphetamine (actual). M At least 3 G but less than 4 G of Cocaine Base.000 but less than 6. At least 30 G but less than 40 G of Amphetamine. or at least 2 G but less than 3 G of "Ice". At least 24 G but less than 32 G of Fentanyl.000 but less than 80. At least 80.6 KG but less than 2 KG of Hashish Oil. At least 800 MG but less than 1 G of LSD. At least 12 KG but less than 16 KG of Hashish.

M At least 1 G but less than 2 G of Cocaine Base.250 but less than 2. M At least 5 KG but less than 8 KG of Hashish.000 units of Schedule III Hydrocodone.000 units of Schedule III Hydrocodone. M At least 8 G but less than 16 G of Fentanyl. M At least 5 G but less than 10 G of Methamphetamine. M At least 16 G but less than 24 G of Fentanyl. M At least 100 MG but less than 200 MG of LSD. or at least 2 G but less than 3 G of Amphetamine (actual). M At least 2 G but less than 4 G of a Fentanyl Analogue. M At least 20. M At least 1. M At least 8 KG but less than 12 KG of Hashish. 2009 At least 20 G but less than 30 G of Amphetamine.000 but less than 60.000 units of Ketamine. M At least 20. M 40. M At least 40 KG but less than 60 KG of Marihuana. M At least 2 G but less than 3 G of Cocaine Base. Level 18 Level 16 – 146 – . M At least 10 G but less than 20 G of PCP.000 but less than 60. or at least 500 MG but less than 1 G of Amphetamine (actual).750 units of Flunitrazepam. M At least 20 G but less than 40 G of PCP. M At least 20 KG but less than 40 KG of Marihuana. M At least 100 G but less than 200 G of Cocaine.§2D1.000 but less than 40. M At least 20.500 but less than 3.000 but less than 60. M At least 500 G but less than 800 G of Hashish Oil.1 M GUIDELINES MANUAL November 1. M At least 4 G but less than 6 G of a Fentanyl Analogue. M At least 800 G but less than 1. M At least 10 G but less than 20 G of Methamphetamine. M At least 400 MG but less than 600 MG of LSD. M At least 10 G but less than 20 G of Amphetamine.000 units of Schedule III substances (except Ketamine or Hydrocodone). M At least 40. M At least 20.000 or more units of Schedule III substances (except Ketamine or Hydrocodone). or at least 1 G but less than 2 G of Methamphetamine (actual). M At least 5 G but less than 10 G of Amphetamine. or at least 500 MG but less than 1 G of Methamphetamine (actual).2 KG of Hashish Oil.000 units of Ketamine. M At least 50 G but less than 100 G of Cocaine. or at least 500 MG but less than 1 G of "Ice". (12) M At least 10 G but less than 20 G of Heroin.000 but less than 40. M At least 2.000 units of Schedule I or II Depressants. M At least 40.000 but less than 40.000 units of Schedule I or II Depressants. or at least 1 G but less than 2 G of Amphetamine (actual).500 units of Flunitrazepam. or at least 2 G but less than 4 G of PCP (actual). M At least 200 MG but less than 400 MG of LSD. M At least 40.000 but less than 40. or at least 1 G but less than 2 G of "Ice". (11) M At least 20 G but less than 40 G of Heroin. or at least 1 G but less than 2 G of PCP (actual).

M Less than 2.000 units of Schedule III Hydrocodone. At least 625 but less than 1.000 but less than 20.000 units of Ketamine. 2009 GUIDELINES MANUAL §2D1. or at least 500 MG but less than 1 G of PCP (actual). or at least 250 MG but less than 500 MG of Methamphetamine (actual).5 G but less than 5 G of Methamphetamine.000 units of Schedule III substances (except Ketamine or Hydrocodone).000 units of Schedule III substances (except Ketamine or Hydrocodone). M Less than 5 G of PCP.000 units of Schedule I or II Depressants. M Less than 2.000 but less than 10. At least 10. M At least 312 but less than 625 units of Flunitrazepam.5 KG but less than 5 KG of Marihuana.000 but less than 20.000 but less than 10. M At least 5. M At least 5 KG but less than 10 KG of Marihuana.000 units of Schedule I or II Depressants. or at least 250 MG but less than 500 MG of "Ice". M At least 2. At least 10. At least 2 KG but less than 5 KG of Hashish. or less than 500 MG of PCP (actual). M At least 500 MG but less than 1 G of Cocaine Base. M At least 2. At least 1 G but less than 2 G of a Fentanyl Analogue. M Less than 25 G of Cocaine.5 G but less than 5 G of Amphetamine. At least 10 KG but less than 20 KG of Marihuana. M At least 500 G but less than 1 KG of Hashish. Level 14 Level 12 – 147 – . (14) M Less than 5 G of Heroin.000 but less than 20.1 M M M M M M M M M M At least 4 G but less than 8 G of Fentanyl. M At least 500 MG but less than 1 G of a Fentanyl Analogue. M At least 5. M At least 5. At least 200 G but less than 500 G of Hashish Oil.5 G of Methamphetamine. M Less than 500 MG of Cocaine Base. M At least 2 G but less than 4 G of Fentanyl.000 units of Ketamine.November 1. M At least 5.250 units of Flunitrazepam.5 G of Amphetamine. M At least 100 G but less than 200 G of Hashish Oil.000 but less than 20. At least 10. M At least 5 G but less than 10 G of PCP. or less than 250 MG of "Ice". or at least 250 MG but less than 500 MG of Amphetamine (actual). M At least 1 KG but less than 2 KG of Hashish. M Less than 50 MG of LSD. M Less than 500 MG of a Fentanyl Analogue. M Less than 2 G of Fentanyl. or less than 250 MG of Amphetamine (actual).000 but less than 10. or less than 250 MG of Methamphetamine (actual). M At least 50 G but less than 100 G of Hashish Oil. M At least 25 G but less than 50 G of Cocaine. M At least 2.000 units of Schedule III Hydrocodone. At least 10.000 but less than 10. (13) M At least 5 G but less than 10 G of Heroin. M At least 50 MG but less than 100 MG of LSD.

– 148 – .500 but less than 5. M At least 1.000 units of Schedule III substances (except Ketamine or Hydrocodone).§2D1.500 units of Schedule III Hydrocodone. M At least 4. (17) M Less than 250 G of Marihuana.000 units of Ketamine.000 units of Ketamine. M At least 250 but less than 1. M At least 1. (15) M At least 1 KG but less than 2. M At least 20 G but less than 50 G of Hashish Oil. M Less than 250 units of Schedule III substances (except Ketamine or Hydrocodone).5 KG of Marihuana.000 units of Schedule IV substances (except Flunitrazepam). M At least 250 but less than 1. At least 156 but less than 312 units of Flunitrazepam.000 or more units of Schedule V substances. the weight of a controlled substance set forth in the table refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance. M At least 250 but less than 1. M Less than 250 units of Ketamine.000 units of Schedule I or II Depressants. the weight of the entire mixture or substance is assigned to the controlled substance that results in the greater offense level.500 units of Schedule III substances (except Ketamine or Hydrocodone). M Less than 250 units of Schedule I or II Depressants.000 units of Schedule V substances.500 but less than 5. 40. M At least 1. M Less than 5 G of Hashish Oil.1 M M M M M M GUIDELINES MANUAL November 1.500 but less than 5. M At least 5 G but less than 20 G of Hashish Oil. At least 2. M Less than 40. M Less than 62 units of Flunitrazepam. At least 2.000 but less than 40.000 units of Schedule IV substances (except Flunitrazepam).000 units of Schedule I or II Depressants. M At least 1.500 but less than 5. M Less than 50 G of Hashish.000 units of Schedule III Hydrocodone.000 units of Schedule III Hydrocodone. M At least 62 but less than 156 units of Flunitrazepam.000 but less than 2. *Notes to Drug Quantity Table: (A) Level 10 Level 8 Level 6 Unless otherwise specified.000 but less than 2. If a mixture or substance contains more than one controlled substance. M Less than 4.000 but less than 2. M At least 16.500 units of Schedule I or II Depressants. M At least 200 G but less than 500 G of Hashish. At least 2. M At least 250 but less than 1.500 units of Ketamine. (16) M At least 250 G but less than 1 KG of Marihuana.000 but less than 2. M 40. M At least 50 G but less than 200 G of Hashish.000 units of Schedule III substances (except Ketamine or Hydrocodone). 2009 At least 2.000 units of Schedule IV substances (except Flunitrazepam).000 or more units of Schedule IV substances (except Flunitrazepam).000 but less than 16. M Less than 250 units of Schedule III Hydrocodone.

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

and waste water from an illicit laboratory used to manufacture a controlled substance. In the case of a controlled substance that is not specifically referenced in this guideline.—Any reference to a particular controlled substance in these guidelines includes all salts. § 841. For example. to the extent practicable. arrested at his residence.S.S. Distribution of "a small amount of marihuana for no remuneration". with a bale of rain-soaked marihuana or freshly harvested marihuana that had not been dried). 2D1. 2D1. 2D1.7(b)(1). consider the following: 3.1(b)(1). determine the base offense level using the marihuana equivalency of the most closely related controlled substance referenced in this guideline.S. 2D1. which are defined in 21 U. see §§2D1.C.1 Application Notes: 1. isomers. an approximation of the weight of the marihuana without such excess moisture content is to be used. Definitions of "firearm" and "dangerous weapon" are found in the Commentary to §1B1. and. 21 U.11(c)(1). to which §2D2. all salts of isomers. except as expressly provided. the enhancement would not be applied if the defendant. § 802 to mean controlled substances that are falsely labeled so as to appear to have been legitimately manufactured or distributed.2(a)(1) and (2). § 802(32). except extracts of coca leaves from which cocaine and ecgonine have been removed.12(c)(1). had an unloaded hunting rifle in the closet. 2D1. is treated as simple possession. Similarly. except as otherwise provided. the court also may consider whether the same quantity of analogue produces a greater effect on the central nervous system than the controlled substance for which it is an analogue. The adjustment should be applied if the weapon was present. and 2D2. The enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons.8. 2D1.6. 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.5(a)(1).C. GUIDELINES MANUAL November 1.1. any analogue of that controlled substance.S. non-countable material in an unusually sophisticated manner in order to avoid detection. 5. The enhancement also applies to offenses that are referenced to §2D1. Any reference to cocaine includes ecgonine and coca leaves.C. The statute and guideline also apply to "counterfeit" substances. beeswax in a cocaine/beeswax statue. – 150 – . 2.1 (Application Instructions). In determining the most closely related controlled substance. the court may use any reasonable method to approximate the weight of the mixture or substance to be counted.C. 4. the court shall. 2009 "Mixture or substance" as used in this guideline has the same meaning as in 21 U. Analogues and Controlled Substances Not Referenced in this Guideline. for example. If such material cannot readily be separated from the mixture or substance that appropriately is counted in the Drug Quantity Table. unless it is clearly improbable that the weapon was connected with the offense.§2D1. Examples of such materials include the fiberglass in a cocaine/fiberglass bonded suitcase. in the case of marihuana having a moisture content that renders the marihuana unsuitable for consumption without drying (this might occur. In determining the appropriate sentence. § 841(b)(4). An upward departure nonetheless may be warranted when the mixture or substance counted in the Drug Quantity Table is combined with other.1 applies.

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

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

—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. 100. and reduce the combined offense level by 2 levels. The total. Exceptions to 2-level Reduction. or less than 250 mg. determined by adding together the above amounts. or the 2-level reduction results in a combined offense level that is less than the combined offense level that would apply under subdivision (B) of this note if the offense involved only the other controlled substance(s) (i. 1.e. has an offense level of 10 in the Drug Quantity Table. IV. Without the cap. The diazepam.—The 2-level reduction provided in subdivision (i) shall not apply in a case in which: (I) the offense involved 4. the controlled substance(s) other than cocaine base).000 units of a Schedule V substance. if the offense involves cocaine base ("crack") and one or more other controlled substance.November 1.99 kilograms of marihuana set forth as the maximum equivalent weight for Schedule III substances). The combined equivalent weight. 2009 GUIDELINES MANUAL §2D1.999) kilograms. which has an offense level of 18 in the Drug Quantity Table. The marihuana equivalency for the Schedule IV substance is subject to a cap of 4. is subject to the cap of 59.125 kilograms of marihuana.1 (ii) The defendant is convicted of selling 500 grams of marihuana (Level 8) and five kilograms of diazepam (Level 8). is equivalent to 625 grams of marihuana.25 kilograms). The defendant is convicted of selling 56..99 + .000 units of a Schedule IV substance. 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. and V substances. of cocaine base. The defendant is convicted of selling 80 grams of cocaine (Level 16) and five kilograms of marihuana (Level 14). the combined equivalent weight would have been 61. (iii) (iv) (D) Determining Base Offense Level in Offenses Involving Cocaine Base and Other Controlled Substances.000 units of a Schedule III substance. The cocaine is equivalent to 16 kilograms of marihuana.25 kilograms). a Schedule IV drug. The marihuana equivalency for the Schedule III substance is 56 kilograms of marihuana (below the cap of 59.99 (56 + 4.— (i) In General. determine the combined offense level as provided by subdivision (B) of this note.99 kilograms of marihuana set forth as the maximum combined equivalent weight for Schedule III.5 kg or more. (ii) (II) – 153 – . The total is therefore equivalent to 21 kilograms of marihuana. and 200.

710 kg of marihuana corresponds to a combined offense level of 30. 5 gm of cocaine base converts to 100 kg of marihuana (5 gm x 20 kg = 100 kg).5 kg of cocaine converts to 300 kg of marihuana (1. For the heroin. Under the Drug Equivalency Tables in subdivision (E) of this note. the 6.000 kg). For the cocaine and marihuana.100 kg of marihuana corresponds to a combined offense level of 34.000 kg of marihuana (6.§2D1.000 gm x 1 kg = 6. when added together results in a combined equivalent quantity of 6.— (I) GUIDELINES MANUAL November 1. The case involves 5 gm of cocaine base and 6 kg of heroin. which. which. 1.1 (iii) Examples. when added to the 10 kg of marihuana results in a combined equivalent quantity of 710 kg of marihuana. and 1. the reduction does not apply and the combined offense level for the two drugs remains level 34. Because the combined offense level for the two drug types after the 2-level reduction is less than the offense level for the heroin. 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 of marihuana corresponds to an offense level 34 under the Drug Quantity Table. (II) (E) Drug Equivalency Tables. 6. and 6 kg of heroin converts to 6. Under the Drug Equivalency Tables in subdivision (E) of this note. their combined equivalent quantity of 310 kg of marihuana corresponds to a combined offense level of 26 under the Drug Quantity Table.5 kg x 200 gm = 300 kg).100 kg of marihuana. Under the Drug Quantity Table. which is reduced by two levels to level 28. and 10 kg of marihuana. which is reduced by two levels to 32. the combined offense level for all three drug types remains level 28. 2009 The case involves 20 gm of cocaine base. 20 gm of cocaine base converts to 400 kg of marihuana (20 gm x 20 kg = 400 kg).— 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 – . Under the Drug Quantity Table.5 kg of cocaine.

is level 12.01 gm of marihuana 100 gm of marihuana 100 gm of marihuana 80 gm of marihuana – 155 – .November 1.1 100 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. or in combination with another controlled substance. 2009 GUIDELINES MANUAL §2D1.5 kg of marihuana 2.5 kg of marihuana 50 gm of marihuana 500 gm of marihuana 1 kg of marihuana 500 gm of marihuana 6700 gm of marihuana 5 kg of marihuana 800 gm of marihuana 80 gm of marihuana 50 gm of marihuana 165 gm of marihuana 500 gm of marihuana 250 gm of marihuana 50 gm of marihuana 3 kg of marihuana *Provided.5 kg of marihuana 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 . that the minimum offense level from the Drug Quantity Table for any of these controlled substances individually.

granulated. = 1 gm of Hashish Oil = 1 gm of Cannabis Resin or Hashish = 1 gm of Tetrahydrocannabinol.1 gm of marihuana 0. LSD. Synthetic = 1 gm of marihuana 50 gm of marihuana 5 gm of marihuana 167 gm of marihuana 167 gm of marihuana – 156 – . is level 12.4-Methylenedioxyamphetamine/MDA = 1 gm of 3. is level 12.§2D1. that the minimum offense level from the Drug Quantity Table for any of these controlled substances individually.1 1 gm of Methcathinone = GUIDELINES MANUAL November 1.5-Dimethoxyamphetamine/DOB = 1 gm of 2.5-Dimethoxy-4-methylamphetamine/DOM = 1 gm of 3. powdered.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. that the minimum offense level from the Drug Quantity Table for any of these controlled substances individually. 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-2.67 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. PCP. etc. Schedule I Marihuana 1 gm of Marihuana/Cannabis. or in combination with another controlled substance. or in combination with another controlled substance.4-Methylenedioxy-N-ethylamphetamine/MDEA= 1 gm of Paramethoxymethamphetamine/PMA = 1 gm of 1-Piperidinocyclohexanecarbonitrile/PCC = 1 gm of N-ethyl-1-phenylcyclohexylamine (PCE) = 0.4-Methylenedioxymethamphetamine/MDMA = 1 gm of 3. Organic = 1 gm of Tetrahydrocannabinol.5 gm of marihuana 0.5 kg of marihuana 1. 2009 380 gm of marihuana 40 gm of marihuana 1 gm of N-N-Dimethylamphetamine = *Provided.

that the combined equivalent weight of all Schedule III substances (except ketamine and hydrocodone). or in combination with any Schedule I or II depressants. Schedule IV substances. Schedule III Hydrocodone**** 1 unit of Schedule III hydrocodone = 1 gm of marihuana ****Provided.99 kilograms of marihuana. and Schedule V substances shall not exceed 999. Schedule III substances. that the minimum offense level from the Drug Quantity Table for flunitrazepam individually. – 157 – .8 gm of marihuana Schedule III Substances (except ketamine and hydrocodone)*** 1 unit of a Schedule III Substance = 1 gm of marihuana ***Provided. 2009 GUIDELINES MANUAL §2D1. and Schedule V substances is level 8. that the combined equivalent weight of all Schedule III substances (except ketamine).99 kilograms of marihuana.0625 gm of marihuana *****Provided. that the combined equivalent weight of all Schedule IV (except flunitrazepam) and V substances shall not exceed 4.1 Flunitrazepam ** 1 unit of Flunitrazepam = 16 gm of marihuana **Provided.November 1. Schedule IV substances (except flunitrazepam). and Schedule V substances shall not exceed 59. 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. Ketamine 1 unit of ketamine = 1 gm of marihuana Schedule IV Substances (except flunitrazepam)***** 1 unit of a Schedule IV Substance (except Flunitrazepam)= 0.99 kilograms of marihuana. Schedule IV substances (except flunitrazepam).

multiply the number of doses.4536 kg 1 gal = 3. 2009 Schedule V Substances****** 1 unit of a Schedule V Substance = 0. – 158 – . 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. the following table is provided: MEASUREMENT CONVERSION TABLE 1 oz = 28. pseudoephedrine. The Typical Weight Per Unit Table. or capsule for certain controlled substances.4-butanediol = 1 ml of gamma butyrolactone = 8.000 ml 1 kg = 1.8 gm marihuana 8. pseudoephedrine. pills. If the number of doses. GHB. prepared from information provided by the Drug Enforcement Administration.8 mg. pills. or capsules but not the weight of the controlled substance is known.00625 gm of marihuana ******Provided.000 mg 1 grain = 64.946 liters 1 gm = 1 ml (liquid) 1 liter = 1.1 GUIDELINES MANUAL November 1.§2D1.g.35 gm 1 lb = 453.785 liters 1 qt = 0. use the weight of the ephedrine.000 gm 1 gm = 1. Date Rape Drugs (except flunitrazipam. that in a case involving ephedrine.8 gm marihuana To facilitate conversions to drug equivalencies. not the weight of the entire tablets. Do not use this table if any more reliable estimate of the total weight is available from case-specific information.6 gm 1 lb = 0. 100 doses of Mescaline at 500 mg per dose = 50 gms of mescaline). pill. that the combined equivalent weight of Schedule V substances shall not exceed 999 grams of marihuana. or ketamine) 1 ml of 1. in calculating the base offense level. or phenylpropanolamine tablets. displays the typical weight per dose. 11. 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.

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

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

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

—For purposes of subsection (b)(8).—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. specifying the number of months to be served consecutively for the conviction under 21 U.S. by means of an interactive computer service. Application of Subsection (b)(7). is not pertinent to the determination of whether subsection (b)(11) applies. "Interactive computer service". respectively.C. 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. Application of Subsection (b)(8). § 2246(2) and (3). Imposition of Consecutive Sentence for 21 U.S. 21.S. Application of Subsection (b)(6). Application of Subsection (e)(1). § 860a or § 865. 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. an upward departure would be warranted. 23.S. a sentence of 130 months for the underlying offense plus 21 months for the conduct covered by 21 U. for purposes of subsection (b)(6) and this note.—For purposes of subsection (b)(7).S.—For purposes of this guideline. – 162 – . United States Code. 24. after. has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U. when taken before. For example. "sexual offense" means a "sexual act" or "sexual contact" as those terms are defined in 18 U.S. respectively. Section §5C1. Upward Departure Provision.C. (B) 25.1 GUIDELINES MANUAL November 1. prevents the detection of the anabolic steroid in an individual’s body.— (A) Definition. § 860a or § 865. For example. § 860a or § 865 would achieve the "total punishment" in a manner that satisfies the statutory requirement of a consecutive sentence. "masking agent" means a substance that.C.2(b). "athlete" means an individual who participates in an athletic activity conducted by (i) an intercollegiate athletic 26.1 (Criminal Sexual Abuse). which provides a minimum offense level of level 17.C. § 230(f)(2)).§2D1. Applicability of Subsection (b)(11). In order to comply with the relevant statute.—For purposes of subsection (b)(6). 22. § 860a or § 865. or in conjunction with an anabolic steroid.—Sections 860a and 865 of title 21. of a large number of persons to induce those persons to purchase a controlled substance.C. require the imposition of a mandatory consecutive term of imprisonment of not more than 20 years and 15 years.C. if the applicable adjusted guideline range is 151-188 months and the court determines a "total punishment" of 151 months is appropriate. "mass-marketing by means of an interactive computer service" means the solicitation. 2009 "Minor" has the meaning given that term in Application Note 1 of the Commentary to §2A3.—If the defendant committed a sexual offense against more than one individual.

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

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

amendment 591). 1992 (see Appendix C. amendment 135). 1992 (see Appendix C.S. Background: This section implements the direction to the Commission in Section 6454 of the AntiDrug Abuse Act of 1988. amendment 22). November 1.C. 1989 (see Appendix C. amended effective January 15. amendment 447).4 (Attempts and Conspiracies). the offense level from subsection (a)(2) would be level 17 (1 plus the offense level for the sale of 15 grams of heroin. amendment 447). See §1B1. 1989 (see Appendix C. 2000 (see Appendix C. effective November 1. as part of the same course of conduct or common scheme or plan. or Within 1000 Feet of a School or College). was deleted by consolidation with §2D1.5. §§ 859 (formerly 21 U. amendment 135). Attempt or Conspiracy (a) Base Offense Level (Apply the greater): – 165 – . For example. November 1.2 effective November 1. 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. Continuing Criminal Enterprise.S. [Deleted] Historical Note: Section 2D1. 1987. §2D1.November 1. § 845b). amendment 23). if the defendant. 1989 (see Appendix C. amended effective November 1. subsections (a)(1) and (a)(2) may result in different offense levels. 1991 (see Appendix C. Historical Note: Effective November 1. [Deleted] Historical Note: Section 2D1. 1987. § 845).S. sold 5 grams of heroin near a protected location and 10 grams of heroin elsewhere. the total amount of heroin involved in the offense). amendments 136-138). § 845a). 1988 (see Appendix C. This guideline applies only in a case in which the defendant is convicted of a statutory violation of drug trafficking in a protected location or involving an underage or pregnant individual (including an attempt or conspiracy to commit such a violation) or in a case in which the defendant stipulated to such a statutory violation. §2D1.2(a). 1987. the amount sold near the protected location). November 1. amendment 319). the offense level from subsection (a)(1) would be level 16 (2 plus the offense level for the sale of 5 grams of heroin. 861 (formerly 21 U.S. Amended effective January 15. effective November 1. Application Note: 1.3. was deleted by consolidation with the guidelines applicable to the underlying substantive offenses effective November 1. 860 (formerly 21 U.C.C.4.5 Commentary Statutory Provisions: 21 U. §2D1. 2009 GUIDELINES MANUAL §2D1. November 1. November 1. amendment 421). 1990 (see Appendix C. 1988 (see Appendix C.C.3 (Distributing Controlled Substances to Individuals Younger than Twenty-One Years. to Pregnant Women.

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

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

purchased. a defendant who guarded the cache of controlled substances.7 GUIDELINES MANUAL November 1. subsection (a)(2) does not apply if the defendant had previously allowed any premises to be used as a drug establishment without regard to whether such prior misconduct resulted in a conviction. Finally. Amended effective November 1. or a defendant who otherwise assisted in the commission of the underlying controlled substance offense. Renting or Managing a Drug Establishment. – 168 – . 2009 gain (e. Historical Note: Effective November 1. Commentary Statutory Provision: 21 U.§2D1. subsection (a)(2) would not apply to a defendant who possessed a dangerous weapon in connection with the offense. amendment 397). § 856. transportation for the defendant’s personal use).2 (Mitigating Role). (2) (b) Special Instruction (1) If the offense level is determined under subsection (a)(2).g. a defendant who arranged for the use of the premises for the purpose of facilitating a drug transaction. the offense level shall be 4 levels less than the offense level from §2D1. 1991 (see Appendix C. Furthermore. rented. November 1. or otherwise acquired a possessory interest in the premises for a legitimate purpose.1 applicable to the underlying controlled substance offense. If the defendant had no participation in the underlying controlled substance offense other than allowing use of the premises. Attempt or Conspiracy (a) Base Offense Level: (1) The offense level from §2D1. 1987. §2D1. Subsection (a)(2) does not apply unless the defendant had no participation in the underlying controlled substance offense other than allowing use of the premises. a downward departure may be warranted. a defendant who allowed the use of more than one premises. amendment 447).. 1992 (see Appendix C. do not apply an adjustment under §3B1. but not greater than level 26. Application Note: 1.8. For example.S.C. except as provided below. a defendant who made telephone calls to facilitate the underlying controlled substance offense. subsection (a)(2) does not apply unless the defendant initially leased.1 applicable to the underlying controlled substance offense.

November 1. 1992 (see Appendix C. managing. amendment 394).C. Endangering Human Life While Illegally Manufacturing a Controlled Substance.10 Background: This section covers the offense of knowingly opening. November 1.November 1. 2002 (see Appendix C. increase by 3 levels. amendment 640). Historical Note: Effective November 1. Attempt or Conspiracy (a) Base Offense Level: 23 Commentary Statutory Provision: 21 U. If the resulting offense level is less than level 30. distributing. 1992 (see Appendix C. room. or causing to be placed. Placing or Maintaining Dangerous Devices on Federal Property to Protect the Unlawful Production of Controlled Substances. Historical Note: Effective November 1.10.. § 841(d)(1). Specific Offense Characteristic (1) (Apply the greater): (A) If the offense involved the manufacture of amphetamine or methamphetamine. 1987. 1987. increase by 6 levels. §2D1. amendment 646). Amended effective November 1. If the resulting offense level is less than level 27. placing. increase to level 27. increase to level 30.1. and (ii) created a substantial risk of harm to the life of a minor or an incompetent. 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. or 20. or maintaining a "booby-trap" on federal property where a controlled substance is being manufactured or distributed. or enclosure for the purpose of manufacturing. (B) – 169 – . storing. or using a controlled substance contrary to law (e. maintaining. §2D1. amendments 447 and 448). 1991 (see Appendix C.g. Background: This section covers the offense of assembling. Amended effective November 1. November 1. or controlling any building.9. 2009 GUIDELINES MANUAL §2D1. a "crack house"). 2002 (see Appendix C.S. If the offense (i) involved the manufacture of amphetamine or methamphetamine. amendment 447).

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

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

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

At least 500 MG but less than 1 G of Phenylpropanolamine. Base Offense Level Level 30 – 173 – . 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. At least 500 MG but less than 1 G of Pseudoephedrine. At least 2 G but less than 4 G of Pseudoephedrine. 400 KG or more of 3. 4-Methylenedioxyphenyl-2-propanone. At least 4 G but less than 6 G of Pseudoephedrine. 200 G or more of Methylamine. 1. 20 KG or more of Ethylamine. (11) At least 2 G but less than 4 G of Ephedrine. 200 G or more of Ergonovine. 10 KG or more of Piperidine. Less than 500 MG of Pseudoephedrine.November 1. 320 KG or more of Safrole.2 KG or more of Hydriodic Acid. At least 2 G but less than 4 G of Phenylpropanolamine. (13) At least 500 MG but less than 1 G of Ephedrine. 500 KG or more of N-Methylephedrine. 320 KG or more of Piperonal. At least 1 G but less than 2 G of Phenylpropanolamine. 2009 GUIDELINES MANUAL §2D1.6 KG or more of Propionic Anhydride. 400 G or more of Ergotamine. 10 KG or more of Norpseudoephedrine. At least 1 G but less than 2 G of Pseudoephedrine. Less than 500 MG of Phenylpropanolamine. 320 KG or more of Isosafrole. (14) Less than 500 MG of Ephedrine. 20 KG or more of Benzyl Cyanide. (12) At least 1 G but less than 2 G of Ephedrine. 500 KG or more of N-Methylpseudoephedrine. 2.11 Level 20 (10) At least 4 G but less than 6 G of Ephedrine. 625 G or more of Nitroethane. At least 4 G but less than 6 G of Phenylpropanolamine. 20 KG or more of Phenylacetic Acid.

11 GUIDELINES MANUAL November 1. At least 96 KG but less than 320 KG of Safrole. List II Chemicals 11 KG or more of Acetic Anhydride. At least 20 G but less than 60 G of Ergonovine. 1200 KG or more of Methyl Ethyl Ketone. 376. At least 660 G but less than 2. White Phosphorus. 1300 KG or more of Toluene. At least 50 KG but less than 150 KG of N-Methylpseudoephedrine. At least 32 KG but less than 96 KG of Isosafrole. At least 340.2 G or more of Iodine.5 L of Gamma-butyrolactone. At least 2 KG but less than 6 KG of Benzyl Cyanide. At least 150 KG but less than 500 KG of N-Methylephedrine. At least 6 KG but less than 20 KG of Benzyl Cyanide. At least 20 G but less than 60 G of Methylamine. 1175 KG or more of Acetone. or Hypophosphorous Acid. (2) List I Chemicals Level 28 At least 267 G but less than 890 G of Benzaldehyde. At least 62.5 G but less than 187. At least 60 G but less than 200 G of Methylamine. At least 6 KG but less than 20 KG of Ethylamine. 2009 1135.5 G of Nitroethane. 10 KG or more of Potassium Permanganate. 1075 KG or more of Ethyl Ether. At least 60 G but less than 200 G of Ergonovine. White Phosphorus. At least 187. At least 214 G but less than 714 G of Red Phosphorus. At least 40 G but less than 120 G of Ergotamine. 714 G or more of Red Phosphorus. or Hypophosphorous Acid. At least 3 KG but less than 10 KG of Norpseudoephedrine. At least 480 G but less than 1. At least 120 KG but less than 400 KG of 3. Level 26 – 174 – .5 G but less than 625 G of Nitroethane. At least 96 KG but less than 320 KG of Piperonal.§2D1. At least 50 KG but less than 150 KG of N-Methylephedrine. (3) List I Chemicals At least 89 G but less than 267 G of Benzaldehyde.7 L but less than 1135. At least 3 KG but less than 10 KG of Piperidine. At least 150 KG but less than 500 KG of N-Methylpseudoephedrine. At least 2 KG but less than 6 KG of Ethylamine.5 L or more of Gamma-butyrolactone. At least 120 G but less than 400 G of Ergotamine. 4-Methylenedioxyphenyl-2-propanone.6 KG of Propionic Anhydride.2 KG of Hydriodic Acid. At least 220 G but less than 660 G of Hydriodic Acid. 20 KG or more of Benzyl Chloride. At least 6 KG but less than 20 KG of Phenylacetic Acid. At least 96 KG but less than 320 KG of Isosafrole.

6 L of Gamma-butyrolactone. At least 2 KG but less than 6 KG of Benzyl Chloride. List II Chemicals At least 3.5 KG but less than 1075 KG of Ethyl Ether.2 G of Iodine. (4) List I Chemicals Level 24 At least 62. At least 28 KG but less than 40 KG of 3.8 G but less than 62. At least 113. At least 32 KG but less than 96 KG of Safrole. At least 322. At least 35 KG but less than 50 KG of N-Methylephedrine.4 KG but less than 2 KG of Ethylamine. At least 79. At least 154 G but less than 220 G of Hydriodic Acid. At least 22. White Phosphorus. At least 40 KG but less than 120 KG of 3. At least 700 G but less than 1 KG of Piperidine.6 L but less than 340.4 KG but less than 32 KG of Isosafrole. At least 22. At least 1. At least 35 KG but less than 50 KG of N-Methylpseudoephedrine.November 1. At least 28 G but less than 40 G of Ergotamine.5 L but less than 113.5 KG but less than 1175 KG of Acetone. At least 112 G but less than 160 G of Propionic Anhydride. At least 32 KG but less than 96 KG of Piperonal. At least 160 G but less than 480 G of Propionic Anhydride. List II Chemicals At least 1.5 KG but less than 352. At least 50 G but less than 71 G of Red Phosphorus. 2009 GUIDELINES MANUAL §2D1. At least 390 KG but less than 1300 KG of Toluene. or Hypophosphorous Acid. At least 71 G but less than 214 G of Red Phosphorus. At least 117. At least 2 KG but less than 6 KG of Phenylacetic Acid. At least 1 KG but less than 3 KG of Piperidine. At least 6 KG but less than 20 KG of Benzyl Chloride.4 G but less than 376. At least 352.3 KG but less than 11 KG of Acetic Anhydride.4 KG but less than 2 KG of Benzyl Cyanide. At least 14 G but less than 20 G of Methylamine. At least 43.4 KG but less than 2 KG of Phenylacetic Acid. 4-Methylenedioxyphenyl-2-propanone. 4-Methylenedioxyphenyl-2-propanone. White Phosphorus. or Hypophosphorous Acid.4 KG but less than 32 KG of Safrole.4 KG but less than 32 KG of Piperonal.3 G but less than 89 G of Benzaldehyde.5 KG of Acetone.1 KG but less than 3. At least 3 KG but less than 10 KG of Potassium Permanganate.5 G of Nitroethane.11 At least 1 KG but less than 3 KG of Norpseudoephedrine.7 L of Gamma-butyrolactone. At least 700 G but less than 1 KG of Norpseudoephedrine. At least 22. At least 125. – 175 – . At least 1. At least 360 KG but less than 1200 KG of Methyl Ethyl Ketone.3 KG of Acetic Anhydride. At least 1. At least 14 G but less than 20 G of Ergonovine.

List II Chemicals At least 726 G but less than 1. At least 75. At least 400 G but less than 700 G of Norpseudoephedrine. At least 91 KG but less than 130 KG of Toluene.4 KG but less than 2 KG of Benzyl Chloride.4 KG of Isosafrole. 4-Methylenedioxyphenyl-2-propanone. At least 200 G but less than 800 G of Ethylamine. At least 200 G but less than 800 G of Benzyl Cyanide. At least 12.1 KG of Acetic Anhydride.4 KG of Benzyl Cyanide.5 KG of Ethyl Ether.6 G but less than 62. At least 8 G but less than 14 G of Methylamine. At least 400 G but less than 700 G of Piperidine. At least 12.25 KG but less than 117. or Hypophosphorous Acid. At least 700 G but less than 1 KG of Potassium Permanganate.8 KG but less than 22. At least 130 KG but less than 390 KG of Toluene. At least 16 G but less than 28 G of Ergotamine. At least 1. At least 2 G but less than 8 G of Methylamine. At least 16 KG but less than 28 KG of 3.4 L but less than 79. At least 1 KG but less than 3 KG of Potassium Permanganate. At least 800 G but less than 1. At least 25 G but less than 43. At least 88 G but less than 154 G of Hydriodic Acid. At least 29 G but less than 50 G of Red Phosphorus. At least 4 G but less than 16 G of Ergotamine. At least 45.8 KG but less than 22.5 L of Gamma-butyrolactone. At least 800 G but less than 1. 2009 At least 107.8 G of Nitroethane. At least 120 KG but less than 360 KG of Methyl Ethyl Ketone.25 KG but less than 107. At least 3. At least 20 KG but less than 35 KG of N-Methylephedrine.8 KG but less than 22. At least 800 G but less than 1.9 G but less than 35.8 KG of Isosafrole.4 G of Iodine.11 GUIDELINES MANUAL November 1. At least 64 G but less than 112 G of Propionic Anhydride.2 KG but less than 12.5 KG of Acetone.4 KG of Safrole. At least 84 KG but less than 120 KG of Methyl Ethyl Ketone.8 G of Iodine.6 G of Benzaldehyde. Level 20 – 176 – . At least 20 KG but less than 35 KG of N-Methylpseudoephedrine.3 G of Benzaldehyde. (5) List I Chemicals Level 22 At least 35. At least 12. At least 82. At least 22 G but less than 88 G of Hydriodic Acid.4 KG of Piperonal. At least 2 G but less than 8 G of Ergonovine. (6) List I Chemicals At least 8. At least 50.8 G but less than 125.4 KG of Ethylamine. At least 87. At least 8 G but less than 14 G of Ergonovine.5 KG but less than 322.2 G but less than 87.4 KG of Phenylacetic Acid.5 KG of Ethyl Ether. White Phosphorus.§2D1.

At least 200 G but less than 800 G of Phenylacetic Acid.56 KG but less than 3.November 1. At least 9. At least 12. At least 80 G but less than 100 G of Piperidine. At least 6 G but less than 7 G of Red Phosphorus. – 177 – . White Phosphorus. At least 11. At least 7 G but less than 29 G of Red Phosphorus.1 L but less than 11. 2009 GUIDELINES MANUAL §2D1.56 KG but less than 3.2 G of Iodine. At least 160 G but less than 200 G of Ethylamine.6 G but less than 22 G of Hydriodic Acid. (7) List I Chemicals Level 18 At least 7. At least 160 G but less than 200 G of Phenylacetic Acid.2 KG of Safrole.4 L of Gamma-butyrolactone. At least 48 KG but less than 84 KG of Methyl Ethyl Ketone.8 KG of Safrole.4 L but less than 45. At least 160 G but less than 200 G of Benzyl Cyanide.56 KG but less than 3. At least 1. or Hypophosphorous Acid.2 G but less than 4 G of Ergotamine. At least 3. White Phosphorus.2 KG but less than 12.6 G but less than 2 G of Methylamine.2 KG but less than 4 KG of 3.6 G but less than 2 G of Ergonovine. At least 400 G but less than 700 G of Potassium Permanganate.2 KG but less than 12. At least 4 KG but less than 16 KG of 3. At least 100 G but less than 400 G of Piperidine. At least 6. At least 1.4 L of Gamma-butyrolactone.25 KG of Ethyl Ether. At least 800 G but less than 1. At least 80 G but less than 100 G of Norpseudoephedrine.4 KG of Benzyl Chloride. At least 2. At least 4 KG but less than 5 KG of N-Methylpseudoephedrine.2 KG of Isosafrole.5 G but less than 50.25 KG of Acetone.8 KG of Piperonal. At least 5 KG but less than 20 KG of N-Methylpseudoephedrine. At least 47 KG but less than 82.1 G but less than 8. At least 3.2 KG of Piperonal. At least 16 G but less than 64 G of Propionic Anhydride. List II Chemicals At least 440 G but less than 726 G of Acetic Anhydride. 4-Methylenedioxyphenyl-2-propanone. 4-Methylenedioxyphenyl-2-propanone. At least 43 KG but less than 75. At least 2.11 At least 5 KG but less than 20 KG of N-Methylephedrine. At least 12.9 G of Benzaldehyde. or Hypophosphorous Acid. At least 5 G but less than 6. At least 4 KG but less than 5 KG of N-Methylephedrine. At least 52 KG but less than 91 KG of Toluene. At least 3.3 G of Nitroethane. At least 100 G but less than 400 of Norpseudoephedrine.3 G but less than 25 G of Nitroethane.8 G but less than 16 G of Propionic Anhydride. At least 3. At least 2. At least 17.

At least 8. At least 9. At least 13 KG but less than 52 KG of Toluene. At least 13. At least 3. List II Chemicals At least 88 G but less than 110 G of Acetic Anhydride.6 KG but less than 12 KG of Methyl Ethyl Ketone.4 KG but less than 13 KG of Toluene. At least 5.6 KG or more of Anthranilic Acid. At least 60 G but less than 80 G of Piperidine. 2009 List II Chemicals At least 110 G but less than 440 G of Acetic Anhydride. At least 10. At least 200 G but less than 800 G of Benzyl Chloride. At least 3 KG but less than 4 KG of N-Methylpseudoephedrine.2 G of Ergotamine.§2D1. At least 80 G but less than 100 G of Potassium Permanganate. At least 6.6 G but less than 5. At least 160 G but less than 200 G of Benzyl Chloride.56 KG of Piperonal. At least 1. (8) List I Chemicals Level 16 3. At least 120 G but less than 160 G of Phenylacetic Acid.75 KG of Acetone.8 L but less than 9. At least 11. At least 120 G but less than 160 G of Ethylamine. At least 12 KG but less than 48 KG of Methyl Ethyl Ketone.2 G but less than 17.92 KG but less than 2.5 G of Iodine.4 G but less than 3. White Phosphorus.3 G but less than 7.1 L of Gamma-butyrolactone.5 G but less than 10 G of Iodine. At least 10.75 KG but less than 43 KG of Ethyl Ether.8 KG or more of N-Acetylanthranilic Acid. At least 1.56 KG of Isosafrole.8 G but less than 5 G of Nitroethane. At least 7. At least 2. At least 10 G but less than 12.4 KG but less than 3. or Hypophosphorous Acid.6 G but less than 12. At least 9.56 KG of Safrole. At least 1.6 KG but less than 10.4 KG but less than 11.92 KG but less than 2. At least 60 G but less than 80 G of Norpseudoephedrine. At least 3 KG but less than 4 KG of N-Methylephedrine.6 G of Methylamine. At least 4 G but less than 6 G of Red Phosphorus.7 KG but less than 3.2 KG of 3.6 KG of Anthranilic Acid.8 G of Propionic Anhydride.6 G of Hydriodic Acid. At least 9. At least 120 G but less than 160 G of Benzyl Cyanide.92 KG but less than 2.2 G but less than 1. At least 1.6 G of Ergonovine. Level 14 – 178 – . At least 3. 4-Methylenedioxyphenyl-2-propanone.75 KG of Ethyl Ether. At least 1. (9) List I Chemicals At least 2. At least 100 G but less than 400 G of Potassium Permanganate. At least 2.1 G of Benzaldehyde.3 G of Benzaldehyde.11 GUIDELINES MANUAL November 1. 4.2 G but less than 1.75 KG but less than 47 KG of Acetone.

Less than 80 G of Benzyl Cyanide. At least 8.6 KG of Methyl Ethyl Ketone.2 KG but less than 9. Less than 2. At least 7. Less than 40 G of Norpseudoephedrine. Less than 80 G of Phenylacetic Acid. At least 800 MG but less than 1. Less than 80 G of Ethylamine. 2009 GUIDELINES MANUAL §2D1.8 G of Nitroethane.4 KG of Toluene.45 KG but less than 8. At least 6. At least 800 MG but less than 1.92 KG of Safrole. List II Chemicals At least 66 G but less than 88 G of Acetic Anhydride. Less than 800 MG of Methylamine. At least 7.5 L but less than 6.8 KG of N-Acetylanthranilic Acid.44 KG of Isosafrole.92 KG of Piperonal. Level 12 – 179 – .6 KG but less than 4.25 KG but less than 3 KG of N-Methylpseudoephedrine. At least 2.25 KG but less than 3 KG of N-Methylephedrine.8 G of Hydriodic Acid. At least 5 G but less than 7. Less than 3. Less than 2. At least 7. Less than 8.5 G of Nitroethane. At least 80 G but less than 120 G of Ethylamine. At least 1. At least 7. At least 4.5 G but less than 3. or Hypophosphorous Acid.6 KG of N-Acetylanthranilic Acid.2 G but less than 9.6 G of Propionic Anhydride.44 KG but less than 1. At least 40 G but less than 60 G of Piperidine. Less than 1.25 KG of N-Methylpseudoephedrine. White Phosphorus.6 KG of Ethyl Ether.8 G but less than 13. At least 3. Less than 800 MG of Ergonovine.92 KG of Isosafrole.2 G of Ergonovine. At least 120 G but less than 160 G of Benzyl Chloride.05 KG but less than 9.4 G of Ergotamine.8 KG but less than 2. At least 1. At least 80 G but less than 120 G of Phenylacetic Acid.11 At least 80 G but less than 120 G of Benzyl Cyanide. At least 60 G but less than 80 G of Potassium Permanganate. (10) List I Chemicals Less than 2.8 L of Gamma-butyrolactone. At least 1.2 G of Hydriodic Acid.4 KG of 3.44 KG but less than 1.44 KG but less than 1.7 KG of Anthranilic Acid. At least 1. At least 1.8 KG but less than 10. At least 3 G but less than 4 G of Red Phosphorus. At least 2.4 KG of Acetone.November 1. 4-Methylenedioxyphenyl-2-propanone.6 G but less than 2.6 G of Benzaldehyde.2 G of Methylamine.5 G of Iodine. Less than 1. Less than 2.25 KG of N-Methylephedrine. At least 2.6 G of Ergotamine. Less than 3. At least 40 G but less than 60 G of Norpseudoephedrine.

Less than 60 G of Potassium Permanganate. (2).S.8 KG of 3. "Firearm" and "dangerous weapon" are defined in the Commentary to §1B1.44 KG of Safrole. or phenylpropanolamine tablets.05 KG of Acetone. Less than 6. in calculating the base offense level.5 L of Gamma-butyrolactone. The adjustment in subsection (b)(1) should be applied if the weapon was present. 4-Methylenedioxyphenyl-2-propanone. pseudoephedrine. (2). Pseudoephedrine. Less than 7. or a person for whose conduct the defendant is accountable under §1B1. Less than 1. (f)(1). (C) In a case involving ephedrine.44 KG of Piperonal.11 GUIDELINES MANUAL November 1. (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. or phenylpropanolamine contained in the tablets. not the weight of the entire tablets. and (ii) determine the base offense level corresponding to the aggregate quantity.e. Less than 7. list I or list II) under subsection (d) or (e) of this guideline. Less than 7.2 KG of Methyl Ethyl Ketone. unless it is improbable that the weapon was connected with the offense. Commentary Statutory Provisions: 21 U. (4). (3). use the quantity of the single chemical that results in the greatest offense level. §§ 841(c)(1). ______________ *Notes: (A) Except as provided in Note (B).C. "Offense involved unlawfully manufacturing a controlled substance or attempting to manufacture a controlled substance unlawfully. 960(d)(1).2 G of Propionic Anhydride. Less than 4. pseudoephedrine.§2D1. use the weight of the ephedrine. Less than 1. as appropriate. Less than 5 G of Iodine. and Phenylpropanolamine Quantity Table.45 KG of Ethyl Ether. Less than 1.8 KG of Toluene. 865.. regardless of whether the chemicals are set forth in different tables or in different categories (i. White Phosphorus. Application Notes: 1." as used in subsection (c)(1). – 180 – . or Hypophosphorous Acid. Less than 120 G of Benzyl Chloride. to calculate the base offense level in an offense that involves two or more chemicals.3 (Relevant 2. List II Chemicals Less than 66 G of Acetic Anhydride. Less than 7. 2009 Less than 40 G of Piperidine. (i) aggregate the quantities of all such chemicals. means that the defendant.1 (Application Instructions). Less than 3 G of Red Phosphorus.

The base offense level for each chemical is calculated separately and the chemical with the higher base offense level is used. Ephedrine and hydriodic acid typically are used together in the same manufacturing process to manufacture methamphetamine. Under the grouping rules of §3D1. – 181 – . 2009 GUIDELINES MANUAL §2D1.11 Conduct). Example: The defendant was in possession of five kilograms of ephedrine and 300 grams of hydriodic acid. and (ii) determine the base offense level corresponding to the aggregate quantity.—In a case involving two or more chemicals used to manufacture different controlled substances. or Trafficking). an aggregate quantity of 130 grams of such chemicals. Note that in determining the scale of the offense under §2D1.1).— (A) Determining the Base Offense Level for Two or More Chemicals.1 (P2P is listed in the Drug Equivalency Table under Cocaine and Other Schedule I and II Stimulants (and their immediate precursors)). the quantity of both the controlled substance and listed chemical should be considered (see Application Note 12 in the Commentary to §2D1.. 300 grams of hydriodic acid result in a base offense level of level 26. completed the actions sufficient to constitute the offense of unlawfully manufacturing a controlled substance or attempting to manufacture a controlled substance unlawfully. or to manufacture one controlled substance by different manufacturing processes. Cases Involving Multiple Chemicals.e. if the offense involves two or more chemicals. The offense level for methylamine is determined by using §2D1.11.2(b). P2P (an immediate precursor) and methylamine (a listed chemical) are used together to produce methamphetamine. list I or list II) under this guideline. For example.1 (Unlawfully Manufacturing. regardless of whether the chemicals are set forth in different tables or in different categories (i. The offense level for P2P is determined by using §2D1. the base offense level would be level 38. Importing.—If the offense involves two or more chemicals each of which is set forth in the Ephedrine.1. and a related offense involving an immediate precursor or other controlled substance covered under §2D1. the defendant will be convicted of an offense involving a listed chemical covered under this guideline. the counts will be grouped together. or Phenylpropanolamine. (C) Upward Departure. and Phenylpropanolamine Quantity Table. (i) aggregate the quantities of all such chemicals. an upward departure may be warranted if the offense level does not adequately address the seriousness of the offense.November 1. In this case. Five kilograms of ephedrine result in a base offense level of level 38. Example: The defendant was in possession of 80 grams of ephedrine and 50 grams of phenylpropanolamine. 4. use the quantity of the single chemical that results in the greatest offense level. Exporting. Determine the offense level under each guideline separately. Pseudoephedrine. 3. In certain cases. Pseudoephedrine. The base offense level corresponding to that aggregate quantity is level 32. (B) Determining the Base Offense Level for Offenses involving Ephedrine.—Except as provided in subdivision (B).

pseudoephedrine.S. For example. §§ 5124.—For purposes of subsection (b)(4). 6.C.1 (Restitution) and in fashioning appropriate conditions of supervision under §§5B1. 8. Subsection (b)(3) applies if the conduct for which the defendant is accountable under §1B1. "Interactive computer service". § 230(f)(2)). requires the imposition of a mandatory consecutive term of imprisonment of not more than 15 years. has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U. 7. The amount of ephedrine – 182 – .S. Background: Offenses covered by this guideline involve list I chemicals (including ephedrine. emission. § 865 would achieve the "total punishment" in a manner that satisfies the statutory requirement of a consecutive sentence. In some cases. "mass-marketing by means of an interactive computer service" means the solicitation. List I chemicals are important to the manufacture of a controlled substance and usually become part of the final product. 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.S.—Section 865 of title 21. 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. Application of Subsection (b)(4).C. or the Comprehensive Environmental Response.3 (Relevant Conduct) involved any discharge. 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).C. for purposes of subsection (b)(4) and this note. United States Code.S.C. transportation. 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. Additionally. § 865. or disposal violation covered by the Resource Conservation and Recovery Act. 9603(b).S.S. specifying the number of months to be served consecutively for the conviction under 21 U. In such cases.3 (Conditions of Supervised Release).§2D1. For example. In order to comply with the relevant statute. § 1319(c).S.S.C. release. § 865.3 (Conditions of Probation) and 5D1. 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. For example.C. 42 U. In a case in which the defendant possessed or distributed the listed chemical without such knowledge or belief. § 6928(d). the court should determine the appropriate "total punishment" and. and 960(d)(2). 33 U. and pheylpropanolamine) and list II chemicals. and Liability Act. an upward departure may be warranted. 2009 Convictions under 21 U.11 5. divide the sentence between the sentence attributable to the underlying drug offense and the sentence attributable to 21 U.S. storage. on the judgment form.C. treatment. Imposition of Consecutive Sentence for 21 U. § 865. §§ 841(c)(2) and (f)(1).C. the Federal Water Pollution Control Act. (d)(3). ephedrine reacts with other chemicals to form methamphetamine. of a large number of persons to induce those persons to purchase a controlled substance. GUIDELINES MANUAL November 1. a sentence of 130 months for the underlying offense plus 21 months for the conduct covered by 21 U. if the applicable adjusted guideline range is 151-188 months and the court determines a "total punishment" of 151 months is appropriate. Compensation.C. 42 U. by means of an interactive computer service.

if the defendant had reasonable cause to believe the prohibited flask.12. amendment 541). equipment. November 1. emission. If the offense involved stealing anhydrous ammonia or transporting stolen anhydrous ammonia. Equipment. amendment 519). amendment 557).3 (Relevant Conduct). amendments 705 and 707). November 1. If the offense involved (A) an unlawful discharge. May 1.November 1. 1991 (see Appendix C. distributed any prohibited flask. chemical. chemical. amendment 371). or attempting to manufacture a controlled substance unlawfully. apply – 183 – . amendments 667 and 668). increase by 2 levels. increase by 2 levels. treatment. Unlawful Possession. amendment 646). §2D1. or had reasonable cause to believe that prohibited flask. November 1.12 directly affects the amount of methamphetamine produced. equipment. product. storage. or (B) knew. product. or Material. amendments 605 and 606). increase by 2 levels. or material was to be used to manufacture a controlled substance. November 1. product. or a person for whose conduct the defendant is accountable under §1B1. 2004 (see Appendix C. or (B) the unlawful transportation. amendment 447). Attempt or Conspiracy (a) Base Offense Level (Apply the greater): (1) 12. 2005 (see Appendix C. November 1. increase by 6 levels. Transportation. 2003 (see Appendix C. 2009 GUIDELINES MANUAL §2D1. amendment 679). 2001 (see Appendix C. equipment. chemical. Distribution. equipment. Chemical. or material through mass-marketing by means of an interactive computer service. (2) (b) Specific Offense Characteristics (1) If the defendant (A) intended to manufacture methamphetamine. November 1. or disposal of a hazardous waste. or Importation of Prohibited Flask. 1995 (see Appendix C. 1997 (see Appendix C. November 1. and reagents. amendment 625). catalysts. or 9. amendment 661). List II chemicals are generally used as solvents. If the defendant. 2000 (see Appendix C. or material was to be used to manufacture methamphetamine. November 1. 2001 (see Appendix C. if the defendant intended to manufacture a controlled substance or knew or believed the prohibited flask. amendment 611). Manufacture. 2007 (see Appendix C. chemical. Exportation. May 1. product. believed. November 1. or release into the environment of a hazardous or toxic substance. (2) (3) (4) (c) Cross Reference (1) If the offense involved unlawfully manufacturing a controlled substance. or material was to be used to manufacture a controlled substance. Amended effective November 1. 2002 (see Appendix C. 1997 (see Appendix C. Product. Historical Note: Effective November 1. 1992 (see Appendix C.

In some cases. of a large number of persons to induce those persons to purchase a controlled substance. completed the actions sufficient to constitute the offense of unlawfully manufacturing a controlled substance or attempting to manufacture a controlled substance unlawfully.3 (Relevant Conduct) involved any discharge. – 184 – . Importing. §§ 5124. 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. 3.1 (Unlawful Manufacturing. November 1. 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). 2. transportation. Exporting. § 230(f)(2)).C. has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U. § 6928(d). Application Notes: 1.C. storage. or material. emission. amendment 447). release. "mass-marketing by means of an interactive computer service" means the solicitation. Amended effective November 1. November 1. November 1.S.S.C.3 (Relevant Conduct). products. §§ 843(a)(6). 1997 (see Appendix C.3 (Conditions of Supervised Release). or the Comprehensive Environmental Response. 42 U. amendment 371). amendment 626). 2004 (see Appendix C.—For purposes of subsection (b)(3). Compensation. November 1. transportation. "Interactive computer service". Application of Subsection (b)(3). an upward departure may be warranted. or importation of prohibited flasks. for purposes of subsection (b)(3) and this note. Historical Note: Effective November 1. means that the defendant. 1992 (see Appendix C. Additionally. (7). 1995 (see Appendix C. treatment.S. amendment 520). § 1319(c). equipment. 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. 864. 1991 (see Appendix C.1 (Restitution) and in fashioning appropriate conditions of supervision under §§5B1. the Federal Water Pollution Control Act.12 GUIDELINES MANUAL November 1.C. or Trafficking) if the resulting offense level is greater than that determined above. For example. exportation. and Liability Act.§2D1. an upward departure may be warranted. "Offense involved unlawfully manufacturing a controlled substance or attempting to manufacture a controlled substance unlawfully. If the offense involved the large-scale manufacture. 42 U. or a person for whose conduct the defendant is accountable under §1B1. 33 U. distribution. or disposal violation covered by the Resource Conservation and Recovery Act. chemicals. amendment 558). 9603(b).S. 4. amendment 667)." as used in subsection (c)(1). In such cases. Subsection (b)(2) applies if the conduct for which the defendant is accountable under §1B1. November 1. 2009 §2D1.C. Commentary Statutory Provisions: 21 U. by means of an interactive computer service.3 (Conditions of Probation) and 5D1. 2000 (see Appendix C. amendment 605).S. 2001 (see Appendix C.

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

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

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

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

amendment 421) and November 1. amendment 447). §2D3. 1993 (see Appendix C. For additional statutory provision(s). 1991 (see Appendix C.5 (Violation of Recordkeeping or Reporting Requirements for Listed Chemicals and Certain Machines. §§ 842(a)(2). 2009 GUIDELINES MANUAL §2D3. effective November 1. 1993 (see Appendix C. amendment 481). amendment 481). amendment 447). amendment 481). (b). Attempt or Conspiracy). amendment 481).S. was deleted by consolidation with §2D3. effective November 1. [Deleted] Historical Note: Section 2D3. 961. was deleted by consolidation with §2D3. 1993 (see Appendix C.3. amendment 371).4. 1992 (see Appendix C. 1990 (see Appendix C. (10). Amended effective November 1. November 1.2 effective November 1. 1991 (see Appendix C. [Deleted] Historical Note: Section 2D3.2 effective November 1.November 1. Attempt or Conspiracy). amended effective November 1. 1992 (see Appendix C. amendment 447).4 (Illegal Transfer or Transshipment of a Controlled Substance. amendment 421). (9). – 189 – .2 effective November 1.5 Commentary Statutory Provisions: 21 U. 1987.C. 954. 1987. 1991 (see Appendix C. amendment 359) and November 1. amended effective November 1. 1992 (see Appendix C. amendment 447). §2D3. 1992 (see Appendix C. §2D3.5.3 (Illegal Use of Registration Number to Distribute or Dispense a Controlled Substance to Another Registrant or Authorized Person. Historical Note: Effective November 1. November 1. November 1. 1995 (see Appendix C. [Deleted] Historical Note: Section 2D3. amendment 534). amended effective November 1. 1993 (see Appendix C. Attempt or Conspiracy). see Appendix A (Statutory Index). was deleted by consolidation with §2D3. 1987. effective November 1.

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

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

Amended effective November 1. 1987.C. 1990 (see Appendix C. Amended effective November 1. amendment 144). was deleted by consolidation with §§2B3. amendment 311).S. 1992 (see Appendix C. 1987..S. Use of Interstate Commerce Facilities in the Commission of Murder-For-Hire (a) Base Offense Level (Apply the greater): (1) (2) 32.1. 1989 (see Appendix C. amendment 481). amended effective November 1.3 GUIDELINES MANUAL November 1. 1989 (see Appendix C. amendment 145).§2E1.2. § 1952A). 12). Historical Note: Effective November 1.C. If the underlying conduct violates state law. § 1959 (formerly 18 U. the offense level corresponding to the most analogous federal offense is to be used. amendment 143).3.S.e. 1987. Background: This guideline and the statute to which it applies do not require that a murder actually have been committed. 2009 Commentary Statutory Provision: 18 U. §2E1. If the underlying conduct violates state law. 2. §2E1. – 192 – .5 (Hobbs Act Extortion or Robbery).1 effective November 1. November 1. 2B3. Application Note: 1. 2B3.5. and 2C1. Commentary Statutory Provision: 18 U. the offense level corresponding to the most analogous federal offense is to be used. If the offense level for the underlying conduct is less than the alternative minimum base offense level specified (i. [Deleted] Historical Note: Section 2E1. § 1958 (formerly 18 U. Background: The conduct covered under this section ranges from threats to murder. 1993 (see Appendix C. the alternative minimum base offense level is to be used.S. 1989 (see Appendix C. November 1. or the offense level applicable to the underlying unlawful conduct. effective November 1.4. Application Notes: 1.C.C. amendment 449). The maximum term of imprisonment authorized by statute ranges from three years to life imprisonment. Historical Note: Effective November 1. § 1952B).

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

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

1993 (see Appendix C.S. amendment 481). effective November 1.C. 1306. 1953.3 (Other Gambling Offenses). § 2156(g). or 10. * * * * * – 195 – . § 5363. Animal Fighting Offenses (a) Base Offense Level: (Apply the greatest) (1) 12. see Appendix A (Statutory Index). 1511. amendment 721). 1987. maiming or death to an animal. 31 U. For additional statutory provision(s). or to facilitate. Upward Departure Provision. Definition. Historical Note: Effective November 1. November 1. if the offense involved an animal fighting venture. 2008 (see Appendix C.S.3. otherwise. 1993 (see Appendix C. was deleted by consolidation with §2E3.3 §2E3. amendment 703). Application Notes: 1.1. (2) (3) Commentary Statutory Provisions: 7 U.C. or 6. §2E3.S.—If the offense involved extraordinary cruelty to an animal that resulted in. effective November 1. 2009 GUIDELINES MANUAL §2E3. 1993 (see Appendix C. 2007 (see Appendix C. was deleted by consolidation with §2E3.S. §§ 1082. 1987. or (C) committed as part of.C.1 effective November 1.C.C. (B) transmission of wagering information. §§ 1172-1175. [Deleted] Historical Note: Section 2E3.November 1. 2.1 effective November 1.2 (Transmission of Wagering Information). 1301-1304. if the offense was (A) engaging in a gambling business.—For purposes of this guideline: "Animal fighting venture" has the meaning given that term in 7 U. an upward departure may be warranted.S. Gambling Offenses. 15 U. for example. November 1. 1955. 18 U. 1987. amendment 481). a commercial gambling operation. §2E3. Amended effective November 1.2. § 2156. [Deleted] Historical Note: Section 2E3. amendment 481).

amendment 724).§2E4. amendment 700). it is graded by use of the tax table in §2T4. and fraud in this subpart generally correspond to similar conduct under other parts of the guidelines. members of labor organizations under the Labor-Management Reporting and Disclosure Act of 1959. Because this offense is basically a tax matter. 1987.1.1 4. * * * * * 5. theft. Thus. §2E4. and participants of employee pension and welfare benefit plans covered under the Employee Retirement Income Security Act. LABOR RACKETEERING Introductory Commentary The statutes included in this subpart protect the rights of employees under the Taft-Hartley Act.C. November 1. The base offense levels for bribery and graft have been set higher than the level for commercial – 196 – . The base offense levels for many of the offenses in this subpart have been determined by reference to analogous sections of the guidelines. Application Note: 1.S. or the offense level from the table in §2T4. §§ 2342(a). Amended effective November 1. 2344(a). 1987. 2008 (see Appendix C. Background: The conduct covered by this section generally involves evasion of state and local excise taxes. 2007 (see Appendix C.1 (Tax Table) corresponding to the amount of the tax evaded. "Tax evaded" refers to state and local excise taxes. Unlawful Conduct Relating to Contraband Cigarettes and Smokeless Tobacco (a) Base Offense Level (Apply the greater): (1) (2) 9. amendment 700).1. At least 10. 2009 TRAFFICKING IN CONTRABAND CIGARETTES AND SMOKELESS TOBACCO Historical Note: Effective November 1. Commentary Statutory Provisions: 18 U.000 cigarettes must be involved. 2007 (see Appendix C. Amended effective November 1. Historical Note: Effective November 1. GUIDELINES MANUAL November 1. the base offense levels for bribery.

increase by 2 levels.4 (Base Fine). Application Notes: 1.C. Representatives. § 186.S.1 (Theft. Offering. (B) if a bribe.November 1. "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. Commentary Statutory Provisions: 18 U.000. §2E5. or (B) exceeded $5. or Labor Organizations (a) Base Offense Level: (1) (2) (b) 10. 29 U. increase by the number of levels from the table in §2B1. if a bribe. the consequential damages resulting from the unlawful payment.C. and Fraud) corresponding to that amount. the value of the benefit received or to be received in return for the unlawful payment. 1987. Specific Offense Characteristics (1) If the defendant was a fiduciary of the benefit plan or labor organization. whichever is greater (A) exceeded $2.1.000. Historical Note: Effective November 1. (2) (c) Special Instruction for Fines . § 1954. if a gratuity. Property Destruction.S. or Soliciting a Bribe or Gratuity Affecting the Operation of an Employee Welfare or Pension Benefit Plan.1 bribery due to the particular vulnerability to exploitation of the organizations covered by this subpart. use the greatest of: (A) the value of the unlawful payment. or 6. If the value of the prohibited payment or the value of the improper benefit to the payer. or (C) if a bribe. increase by 1 level.Organizations (1) In lieu of the pecuniary loss under subsection (a)(3) of §8C2.000 but did not exceed $5. Prohibited Payments or Lending of Money by Employer or Agent to Employees. 2009 GUIDELINES MANUAL §2E5. Accepting. – 197 – .

1 (Offering. 1987. 2009 "Gratuity" refers to the offer or acceptance of an unlawful payment other than a bribe. 1989 (see Appendix C. November 1. Historical Note: Effective November 1. 1987. Extortion Under Color of Official Right.2. Accepting. 2001 (see Appendix C. "Fiduciary of the benefit plan" is defined in 29 U. do not apply the adjustment at §3B1. and Fraud). Giving. amendment 666).1(b)(1) applies. 3. amended effective June 15. was deleted by consolidation with §2B1. Fraud Involving the Deprivation of the Intangible Right to Honest Services of Public Officials. or who has any discretionary authority or responsibility in the administration of such plan.§2E5. Failure to Maintain and Falsification of Records Required by the Labor Management Reporting and Disclosure Act. November 1. 1993 (see Appendix C. If the adjustment for a fiduciary at §2E5. 2004 (see Appendix C. [Deleted] Historical Note: Section 2E5. §2E5. including the value of the bribe or gratuity and the magnitude of the loss resulting from the transaction. or an embezzlement. amendment 617). 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. Destruction and Failure to Maintain Corporate Audit Records (a) Base Offense Level (Apply the greater): (1) (2) 6. §2E5. Background: This section covers the giving or receipt of bribes and other unlawful gratuities involving employee welfare or pension benefit plans. amendment 399). or (C) an obstruction of justice offense. (B) an offense involving a bribe or a gratuity. 1988 (see Appendix C.C. 4.1 (Theft. or has any authority or responsibility to do so.1 effective November 1. Conspiracy to Defraud by Interference with Governmental Functions). amendment 150). November 1. amendment 422). 1991 (see Appendix C. November 1. Property Destruction. amendment 481). The seriousness of the offense is determined by several factors. or Soliciting a Bribe or Gratuity Affecting the Operation of – 198 – .2 (Theft or Embezzlement from Employee Pension and Welfare Benefit Plans). amendment 481). amendment 28). 1989 (see Appendix C.1 2. or If the offense was committed to facilitate or conceal (A) an offense involving a theft. § 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. 1993 (see Appendix C.3 (Abuse of Position of Trust or Use of Special Skill). 1991 (see Appendix C.S. effective November 1.3. or labor organizations. and November 1. 5. §2E5. "Value of the improper benefit to the payer" is explained in the Commentary to §2C1. November 1. or Receiving a Bribe. amendment 149). a fraud. Soliciting. False Statements and Concealment of Facts in Relation to Documents Required by the Employee Retirement Income Security Act. apply §2B1. Amended effective November 1.1 (Offering. GUIDELINES MANUAL November 1.

1987. §§ 439. November 1. 1989 (see Appendix C. Representatives. amendment 647). effective November 1. see Appendix A (Statutory Index). It also covers failure to maintain proper documents required by the LMRDA or falsification of such documents. Background: This section covers the falsification of documents or records relating to a benefit plan covered by ERISA. Historical Note: Effective November 1.C. amendment 481). 1987. effective November 1. 1131. [Deleted] Historical Note: Section 2E5. 1987.1 effective November 1. amendment 481). 1989 (see Appendix C. amendment 653). was deleted by consolidation with §2E5. 1520. amendment 481). Appendix C.3 effective November 1. [Deleted] Historical Note: Section 2E5. 1991 (see Appendix C. or Labor Organizations).1 effective November 1. §§ 1027. 2003 (see Appendix C. 2003 (see. Prohibited Payments or Lending of Money by Employer or Agent to Employees. January 25. amended effective June 15. – 199 – . 29 U. 1993 (see Appendix C.2 (Obstruction of Justice).November 1. §2E5.6 (Prohibited Payments or Lending of Money by Employer or Agent to Employees. 1987.4 (Embezzlement or Theft from Labor Unions in the Private Sector). amendment 422). November 1.S.C. Representatives. amendment 151). amendment 481). was deleted by consolidation with §2E5. 2009 GUIDELINES MANUAL §2E5. amendment 153).S. Such violations sometimes occur in connection with the criminal conversion of plan funds or schemes involving bribery or graft. 461. [Deleted] Historical Note: Section 2E5. the offense level is determined by reference to the offense facilitated by the false statements or documents. amendment 29) and November 1. §2E5. 1988 (see Appendix C.6 an Employee Welfare or Pension Benefit Plan.5 (Failure to Maintain and Falsification of Records Required by the Labor Management Reporting and Disclosure Act). or Labor Organizations). amendment 152). §2E5. 1993 (see Appendix C. was deleted by consolidation with §2B1. amended effective November 1. 1993 (see Appendix C. effective November 1. 1989 (see Appendix C. as applicable.5. For additional statutory provision(s). Commentary Statutory Provisions: 18 U. Amended effective November 1. 1993 (see Appendix C.6. or §2J1.4. amended effective November 1. Where a violation under this section occurs in connection with another offense.

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

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

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

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

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

"Sexual contact" has the meaning given that term in 18 U. or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years.C. "Illicit sexual conduct" has the meaning given that term in 18 U. 2423. § 1328 (only if the offense involved a minor). coercion. (B) an individual. who a law enforcement officer represented to a participant (i) had not attained the age of 18 years.S. "Participant" has the meaning given that term in Application Note 1 of the Commentary to §3B1. and (ii) could be provided for the purposes of engaging in sexually explicit conduct. § 2423(f).S. Attempt to Commit Criminal Sexual Abuse). "Prohibited sexual conduct" has the meaning given that term in Application Note 1 of the Commentary to §2A3. Part D (Multiple Counts) shall be applied as if the persuasion.1 (Aggravating Role). Definitions. § 1030(e)(1). enticement. 2009 GUIDELINES MANUAL §2G1.November 1.C.1 (Criminal Sexual Abuse. 2425. § 2246(3). regardless of the "consent" of the minor. 2422 (only if the offense involved a minor). 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. whether fictitious or not. §§ 1591 (only if the offense involved a minor).S. Application Notes: 1.3 attained the age of 12 years.C.—For purposes of this guideline: "Commercial sex act" has the meaning given that term in 18 U.C. § 1591(e)(3). "Minor" means (A) an individual who had not attained the age of 18 years. travel.S. Chapter Three. 2421 (only if the offense involved a minor). 18 U.C.C. "Interactive computer service" has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U.S. § 2246(2).S. "Sexual act" has the meaning given that term in 18 U. – 205 – .S. § 230(f)(2)). Commentary Statutory Provisions: 8 U.1 shall apply. "Computer" has the meaning given that term in 18 U.S.C. §2A3. (d) Special Instruction (1) If the offense involved more than one minor.C.

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

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

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

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

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

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

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

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

who a law enforcement officer represented to a participant (i) had not attained the age of 18 years. accessing with intent to view.—Subsection (b)(4) applies if the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence.S. 4. Application of Subsection (b)(7). "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. § 230(f)(2)). "Minor" means (A) an individual who had not attained the age of 18 years.C. whether fictitious or not. receipt. that constitutes child pornography.S. access with intent to view. as defined in 18 U.S. "Sexual abuse or exploitation" means any of the following: (A) conduct described in 18 U. § 2241. § 2260(b).C. or trafficking in material relating to the sexual abuse or exploitation of a minor. receive. If the number of 3. § 2256.—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. and (ii) could be provided for the purposes of engaging in sexually explicit conduct.1 (Criminal Sexual Abuse. (B) involved the same minor. "Material" includes a visual depiction. or distribute such materials. § 2421. or any similar visual depiction shall be considered to be one image. whether or not the abuse or exploitation (A) occurred during the course of the offense. 2.2 GUIDELINES MANUAL November 1. (B) an offense under state law. § 2251(a)-(c).— (A) Definition of "Images". regardless of whether the defendant specifically intended to possess. as defined in 18 U. computer or computer-generated image.—"Images" means any visual depiction. Determining the Number of Images. or (C) an attempt or conspiracy to commit any of the offenses under subdivisions (A) or (B). Application of Subsection (b)(5). Part A (Criminal History). or § 2423.C.§2G2.S. (B) an individual. 2009 "Interactive computer service" has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U.C.—For purposes of determining the number of images under subsection (b)(7): (i) Each photograph. Attempt to Commit Criminal Sexual Abuse). "Sexual abuse or exploitation" does not include possession. Application of Subsection (b)(4). § 2422. as defined in 18 U. (B) – 214 – . § 2251A. § 2256(5). 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. § 2243. picture.C. "Prohibited sexual conduct" has the meaning given that term in Application Note 1 of the Commentary to §2A3. or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years. or (C) resulted in a conviction for such conduct. § 2256(8). § 2242.S. § 2251(d)(1)(B).

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

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

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

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

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

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

1 (Importing. Broadcasting Obscene Material (a) (b) Base Offense Level: 12 Specific Offense Characteristics (1) If a person who received the telephonic communication was less than eighteen years of age.C. §§ 1464.C. effective November 1. The extent to which the obscene material was distributed is approximated by the volume of commerce attributable to the defendant. A former §2G3. Historical Note: Effective November 1. § 223(b)(1)(A). increase by 4 levels. amendment 164). or Transporting Obscene Matter. 1989 (see Appendix C. and Fraud) corresponding to the volume of commerce attributable to the defendant is greater than the offense level determined above.S. Property Destruction. 2001 (see Appendix C. was deleted effective November 1. 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. If 6 plus the offense level from the table in §2B1. (2) Commentary Statutory Provisions: 18 U.November 1.2. amendment 592). 2000 (see Appendix C. 1468. amendment 164). 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. 1987.2 §2G3. Mailing. increase to that offense level. Amended effective November 1. Transferring Obscene Matter to a Minor). November 1. Obscene Telephone Communications for a Commercial Purpose.S.2 (Obscene or Indecent Telephone Communications). 2009 GUIDELINES MANUAL §2G3. 47 U. or if a broadcast was made between six o’clock in the morning and eleven o’clock at night.1 (Theft. 1989 (see Appendix C. amendment 617). – 221 – .

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

If subsection (b)(1) applies. 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). effective November 1. or sexual orientation of any person. or to the Chapter Two offense levels for each of the underlying offenses.2. November 1. Historical Note: Effective November 1. amendment 521). amendment 166).November 1. [Deleted] Historical Note: Section 2H1. [Deleted] Historical Note: Section 2H1. amendment 430). Then apply subsection (b) to the alternative base offense level. amended effective November 1. 1995 (see Appendix C.1 effective November 1. amendment 327). national origin. 1991 (see Appendix C. An adjustment from §3A1. amendments 313 and 327). November 1. if a 6-level adjustment from §2H1. 2000 (see Appendix C. 1987. 1987.1(b) applies. in the case of a plea of guilty or nolo contendere. 5. the conduct taken as a whole). effective November 1. 1989 (see Appendix C. 1987. however. Amended effective November 1.1(a) will apply. 3. 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.3 (Abuse of Position of Trust or Use of Special Skill).4.3. effective November 1. amendment 303). religion. November 1.1 effective November 1. was deleted by consolidation with §2H1. color. amended effective November 1..2 (Conspiracy to Interfere with Civil Rights). was deleted by consolidation with §2H1. – 223 – . 1990 (see Appendix C. amendment 165). 1987. (3). amendment 303). as appropriate. See §3A1.4 (a)(2). 1995 (see Appendix C.1 effective November 1. 1989 (see Appendix C.1(c). amended effective November 1. §2H1. was deleted by consolidation with §2H1. 1989 (see Appendix C. 1995 (see Appendix C. gender. 1989 (see Appendix C. amendment 521). "Participant" is defined in the Commentary to §3B1. 2009 GUIDELINES MANUAL §2H1. 2.1(a) will not apply.e. §2H1. do not apply §3B1. Otherwise. §2H1. disability. 1990 (see Appendix C. amendment 521). an additional 3-level enhancement from §3A1.3 (Use of Force or Threat of Force to Deny Benefits or Rights in Furtherance of Discrimination. Damage to Religious Real Property). or (4). ethnicity. [Deleted] Historical Note: Section 2H1. 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). 4. amendment 591). The determination of the applicable alternative base offense level is to be based on the entire conduct underlying the count of conviction (i. If the finder of fact at trial or. Use the alternative base offense level only if it is greater than each of the Chapter Two offense levels determined above. November 1.1 (Aggravating Role).4 (Interference with Civil Rights Under Color of Law).

S. * * * * * 2.1 effective November 1. or 12. 245(b)(1)(A). 1973j(a). 1995 (see Appendix C.C. November 1. §§ 1973i. 1987. an upward departure may be warranted. 1995 (see Appendix C. or (C) voted more than once in a federal election. amended effective November 1. 1015(f). 597. (b). (2) (3) Commentary Statutory Provisions: 18 U. vote for or against a particular candidate. 1990 (see Appendix C. fraud. deceit.5 (Other Deprivations of Rights or Benefits in Furtherance of Discrimination). or register to vote. POLITICAL RIGHTS §2H2. bribery.1. 2003 (see Appendix C. 242. 594. if the obstruction occurred by use of force or threat of force against person(s) or property. 1989 (see Appendix C. Historical Note: Effective November 1. Obstructing an Election or Registration (a) Base Offense Level (Apply the greatest): (1) 18. For additional statutory provision(s). or other means. effective November 1. See Chapter Five. see Appendix A (Statutory Index). 42 U. refrain from voting. theft. 1989 (see Appendix C. – 224 – . Background: Alternative base offense levels cover three major ways of obstructing an election: by force. demanded. 1987. or by bribery. or involved corrupting a public official. if the obstruction occurred by forgery. November 1. or 6. accepted. except as provided in (3) below. Amended effective November 1.5 §2H1. 593. [Deleted] GUIDELINES MANUAL November 1. amendment 168). Part K (Departures).§2H1. amendment 661). Application Note: 1. If the offense resulted in bodily injury or significant property damage. amendment 328).5. (B) gave false information to establish eligibility to vote. amendment 521). was deleted by consolidation with §2H1. A defendant who is a public official or who directs others to engage in criminal conduct is subject to an enhancement from Chapter Three. 592. Part B (Role in the Offense). or agreed to accept anything of value to vote. by deceptive or dishonest conduct.S. if the defendant (A) solicited.C. §§ 241. 2009 Historical Note: Section 2H1. amendment 534). amendment 167) and November 1.

Application Notes: 1.S.C.C.S.November 1. 7216. §§ 119. increase by 8 levels.C.S.1.1 * * * * * 3. 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. Disclosure of Certain Private or Protected Information (a) Base Offense Level (Apply the greater): (1) (2) 9. 2009 GUIDELINES MANUAL §2H3. § 1039(d) or (e). For additional statutory provision(s).S.C. if the resulting offense level is greater than that determined above. or (B) the purpose of the offense was to obtain direct or indirect commercial advantage or economic gain. (d). Satellite Cable Transmissions. 42 U.S. PRIVACY AND EAVESDROPPING §2H3. 18 U. Eavesdropping. increase by 3 levels. see Appendix A (Statutory Index).C.S. § 605.C. 1039. §§ 16962. if the offense of conviction has a statutory maximum term of imprisonment of one year or less but more than six months. 16984. Interception of Communications. 1905.C.S. (b) Specific Offense Characteristics (1) If (A) the defendant is convicted under 18 U. or 6. §§ 7213(a)(1)-(3). (Apply the greater) If— (A) the defendant is convicted under 18 U. 7213A. 26 U. apply the guideline applicable to an attempt to commit that other offense.—If the offense involved interception of satellite cable transmissions for purposes of commercial advantage or private financial gain (including – 225 – . (a)(5). § 1375a(d)(3)(C). (d)(5)(B). § 119. increase by 10 levels. § 119.C.S. 47 U. (2) (B) (c) Cross Reference (1) If the purpose of the offense was to facilitate another offense. 2511. or the defendant is convicted under 18 U. Commentary Statutory Provisions: 8 U.

§2H3.1

GUIDELINES MANUAL

November 1, 2009

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

3.

4.

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§2H3.3

(B)

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

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

§2H3.2.

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

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

§2H3.3.

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

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

* * * * *

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§2H4.1
4.

GUIDELINES MANUAL

November 1, 2009

PEONAGE, INVOLUNTARY SERVITUDE, SLAVE TRADE, AND CHILD SOLDIERS

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

§2H4.1.

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

(b)

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

(2)

(3)

(4)

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

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

3.

4.

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

§2H4.2.

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

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

(2)

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

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§2H4.2
Application Notes: 1.

GUIDELINES MANUAL

November 1, 2009

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

2.

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

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§2J1.2

PART J - OFFENSES INVOLVING THE ADMINISTRATION OF JUSTICE

§2J1.1.

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

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

2.

3.

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

§2J1.2.

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

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§2J1.2
(1)

GUIDELINES MANUAL

November 1, 2009

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

(B)

(C)

(2)

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

(3)

(c)

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

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

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November 1, 2009

GUIDELINES MANUAL

§2J1.2

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

(B)

3.

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

4.

5.

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

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§2J1.2

GUIDELINES MANUAL

November 1, 2009

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

§2J1.3.

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

(2)

(c)

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

(d)

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

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

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November 1, 2009

GUIDELINES MANUAL

§2J1.4

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

2.

3.

4.

5.

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

§2J1.4.

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

(c)

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

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§2J1.4

GUIDELINES MANUAL

November 1, 2009

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

§2J1.5.

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

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

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

2.

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

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

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

Background: This section applies to witness gratuities in federal proceedings. 1987..8 (Bribery of Witness). 1988 (see Appendix C. Historical Note: Effective November 1. amendment 32). In the event that the defendant is convicted under this section as well as for the underlying offense (i. 2006 (see Appendix C. Commentary Statutory Provisions: 18 U. [Deleted] Historical Note: Section 2J1. (3). Chapter Three.C. amendment 481). 2.3 effective November 1. effective November 1. 1991 (see Appendix C. Application Notes: 1. amendment 179). November 1.9. amendment 33). was deleted by consolidation with §2J1.S. and to §3D1. amendment 178).e.7. Amended effective November 1. §2J1. 1989 (see Appendix C.2(c) (Groups of Closely Related Counts).November 1. see the Commentary to Chapter Three. § 201(c)(2).9 §2J1. November 1. was deleted from Chapter Two and replaced by §3C1. amendment 431). increase by 4 levels. Amendment 684). 1987. amendments 180 and 181). Amended effective January 15. 1988 (see Appendix C. 1989 (see Appendix C. – 239 – . amendment 401). the offense with respect to which the payment was made). 2009 GUIDELINES MANUAL §2J1. 1989 (see Appendix C. [Deleted] Historical Note: Effective November 1. Part C (Obstruction) does not apply unless the defendant obstructed the investigation or trial of the payment to witness count.8. For offenses covered under this section. §2J1. 1987. Part C (Obstruction). and November 1. amended effective January 15.3 effective November 1. 1993 (see Appendix 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. November 1. 1991 (see Appendix C.

Background: The above-referenced provisions are misdemeanors. amendment 404).3. 1987.1 effective November 1. if the defendant (A) was a prohibited person at the time the defendant committed the instant offense. 16. §2K1.C. Amended effective November 1. was deleted by consolidation with §2K1. [Deleted] Historical Note: Section 2K1. §2K1.C. 1991 (see Appendix C.2. 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. November 1.2 (Improper Storage of Explosive Materials).1. (k). 844(b). Unlawful Receipt. Prohibited Transactions Involving Explosive Materials (a) Base Offense Level (Apply the Greatest): (1) 24. 1993 (see Appendix C. amendment 481). EXPLOSIVES AND ARSON §2K1. amended effective November 1. 2009 PART K . amendment 481).§2K1. The maximum term of Historical Note: Effective November 1. 1991 (see Appendix C. For additional statutory provision(s). Improper Storage of Explosive Materials (a) Base Offense Level: 6 Commentary Statutory Provisions: 18 U. or (2) (3) (4) – 240 – .OFFENSES INVOLVING PUBLIC SAFETY 1. 1993 (see Appendix C. 18. if the defendant was convicted under 18 U. see Appendix A (Statutory Index). §§ 842(j). 1987.1 GUIDELINES MANUAL November 1.S. 20. or Transportation of Explosive Materials. or (B) knowingly distributed explosive materials to a prohibited person. effective November 1. Possession. imprisonment authorized by statute is one year. § 842(p)(2). Failure to Report Theft of Explosive Materials. 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. amendment 404).S.

Specific Offense Characteristics (1) If the offense involved twenty-five pounds or more of explosive materials. Provided. or if death resulted. the most analogous offense guideline from Chapter Two. or (B) used or possessed any explosive material in connection with another felony offense. or possessed or transferred any explosive material with knowledge or intent that it would be used or possessed in connection with another offense. intent. or Conspiracy) in respect to that other offense if the resulting offense level is greater than that determined above. increase as follows: Weight of Explosive Material (A) (B) (C) (D) (E) (2) At least 25 but less than 100 lbs.1 (Attempt. or reason to believe that it would be used or possessed in connection with another felony offense. 1000 lbs. increase to level 18.S. § 842(p)(2). apply -(A) §2X1. Part A. that the cumulative offense level determined above shall not exceed level 29.3 (5) (b) 12. (B) – 241 – . (c) Cross Reference (1) If the defendant (A) was convicted under 18 U. § 842(p)(2). if the resulting offense level is greater than that determined above. otherwise. At least 500 but less than 1000 lbs. Solicitation. or possessed or transferred any explosive material with knowledge. At least 250 but less than 500 lbs. At least 100 but less than 250 lbs. or (B) used or possessed any explosive material in connection with the commission or attempted commission of another offense.C. If the offense involved any explosive material that the defendant knew or had reason to believe was stolen.November 1. 2009 GUIDELINES MANUAL §2K1.C. or more Increase in Level add 1 add 2 add 3 add 4 add 5. (3) If the defendant (A) was convicted under 18 U. increase by 2 levels.S. If the resulting offense level is less than level 18. increase by 4 levels. Subpart 1 (Homicide).

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

g. November 1. amendment 646). an upward departure under §5K2. 1993 (see. November 1. (b).2(a)(2).1 (Attempt. do not apply the adjustment in subsection (b)(2) because the base offense level itself takes such conduct into account. or (a)(4) are also counted for purposes of determining criminal history points pursuant to Chapter Four.S. "another felony offense" and "another offense" refer to offenses other than explosives or firearms possession or trafficking offenses. for purposes of subsection (c)(1)(A). Part A (Criminal History). or (c). Under subsection (c)(1). "that other offense" means.3 possessed. for purposes of applying subsection (a)(1). 7.C.1(a). with respect to an offense under 18 U. November 1. and is convicted of no other offenses subject to this guideline. Appendix C. (n. 1991 (see Appendix C. See §4A1. or local offense) is to be determined under §2X1. amendment 478). § 842(h) (offense involving stolen explosive materials). 2007 (see Appendix C. comment. 8. Appendix C. Amended effective November 1. November 1. November 1.November 1. under the most analogous guideline from Chapter Two. amendment 568).3). November 1. or Conspiracy) or. § 842(p)(2). including any explosive material that a defendant attempted to obtain by making a false statement. 2002 (see Appendix C. 2009 GUIDELINES MANUAL §2K1.. state. If the defendant is convicted under 18 U. – 243 – . or (c). 1997 (see Appendix C. 1989 (see Appendix C.S. Subpart 1 (Homicide). Historical Note: Effective November 1. plastic explosives). use only those felony convictions that are counted separately under §4A1. amendments 629 and 630). 10. amendment 700). 2001 (see Appendix C. November 1. Part A. the offense level for the underlying offense (which may be a federal. An upward departure may be warranted in any of the following circumstances: (1) the quantity of explosive materials significantly exceeded 1000 pounds. 1987.1(a). (3) the defendant knowingly distributed explosive materials to a person under twenty-one years of age. November 1.C. However.6 (Weapons and Dangerous Instrumentalities) may be warranted.g. In addition. November 1. the underlying Federal crime of violence. amendment 534). In addition. amendment 655).2. or (4) the offense posed a substantial risk of death or bodily injury to multiple individuals. use only those felony convictions that receive criminal history points under §4A1. the defendant used or possessed a firearm to protect the delivery of an unlawful shipment of explosives). where the defendant used or possessed a firearm or explosive to facilitate another firearms or explosives offense (e.. or unlawfully distributed. 11. (2) the explosive materials were of a nature more volatile or dangerous than dynamite or conventional powder explosives (e. 1992 (see. (a)(2). (b). Solicitation. §4A1. For purposes of applying subsection (a)(1) or (2). 1995 (see Appendix C. amendment 183). As used in subsections (b)(3) and (c)(1). amendment 471). if death results. amendment 373). Prior felony conviction(s) resulting in an increased base offense level under subsection (a)(1). 9. 2003 (see Appendix C.

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

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

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

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

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

The cumulative offense level determined from the application of subsections (b)(1) through (b)(4) may not exceed level 29.1 (Attempt. (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. increase to the offense level for the substantive offense. except if subsection (b)(3)(A) applies. (5) If the defendant engaged in the trafficking of firearms. 2332g. if the resulting offense level is greater than that determined above. (b). 26 U. increase by 4 levels. – 249 – . or possessed or transferred any firearm or ammunition with knowledge.S. or possessed or transferred a firearm or ammunition with knowledge or intent that it would be used or possessed in connection with another offense. (e)-(i). (B) Commentary Statutory Provisions: 18 U. 2009 GUIDELINES MANUAL §2K2. If the defendant used or possessed any firearm or ammunition in connection with another felony offense. (x)(1). For additional statutory provisions. 924(a). increase by 4 levels.C.November 1. (r)-(w). increase to level 18. (4) If any firearm (A) was stolen. increase by 4 levels. the most analogous offense guideline from Chapter Two. or reason to believe that it would be used or possessed in connection with another felony offense. Part A. or (B) had an altered or obliterated serial number. or if death resulted. see Appendix A (Statutory Index).C.S. § 5861(a)-(l). (k)-(o). §§ 922(a)-(p).1 (B) a destructive device other than a destructive device referred to in subdivision (A). or Conspiracy) in respect to that other offense. Solicitation. increase by 2 levels. if the resulting offense level is greater than that determined above. If a recordkeeping offense reflected an effort to conceal a substantive offense involving firearms or ammunition. increase by 2 levels. Subpart 1 (Homicide). apply -(A) §2X1. If the resulting offense level is less than level 18. intent.

§2K2. Definition of "Prohibited Person". local. and (a)(4). which is frequently committed in violation of state. 5.—For purposes of subsections (a)(4)(B) and (a)(6). or for some other underlying unlawful purpose.2. nor any other underlying unlawful purpose was involved.22 caliber rim fire ammunition. "Felony conviction" means a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year. § 922(g) or § 922(n). § 921(a)(3). In the unusual case in which it is established that neither avoidance of state.— Subsection (a)(7) includes the interstate transportation or interstate distribution of firearms. regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed. § 5845(f). (a)(3). count only those firearms that were unlawfully sought to be obtained. – 250 – . 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.C.C.C.g. A conviction for an offense committed at age eighteen years or older is an adult conviction.S.S. 2.1).C. 4. "Controlled substance offense" has the meaning given that term in §4B1. "Firearm" has the meaning given that term in 18 U.—For purposes of calculating the number of firearms under subsection (b)(1). "Destructive device" has the meaning given that term in 26 U. 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.S.1 Application Notes: 1. GUIDELINES MANUAL November 1. a federal conviction for an offense committed prior to the defendant’s eighteenth birthday is an adult conviction if the defendant was expressly proceeded against as an adult). § 921(a)(17)(A). or other federal firearms law. Application of Subsection (a)(7). or (B) a magazine or similar device that could accept more than 15 rounds of ammunition was in close proximity to the firearm. 3..—For purposes of subsections (a)(1).S.2(b) and Application Note 1 of the Commentary to §4B1. local. or other federal law restricting the possession of firearms. Semiautomatic Firearm Capable of Accepting a Large Capacity Magazine.— For purposes of this guideline: "Ammunition" has the meaning given that term in 18 U. Application of Subsection (b)(1). This definition does not include a semiautomatic firearm with an attached tubular device capable of operating only with . 2009 Definitions.2 (Definitions of Terms Used in Section 4B1. "prohibited person" means any person described in 18 U.2(a) and Application Note 1 of the Commentary to §4B1. 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. "Crime of violence" has the meaning given that term in §4B1.

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

(b). transferred. (a)(3).C. if the defendant falsifies a record to conceal the sale of a firearm to a prohibited person. 12.—For purposes of applying subsection (a)(1). § 922(p)). and knew or had reason to believe that such conduct would result in the transport.1 GUIDELINES MANUAL November 1. 2009 defendant knew or had reason to believe that the firearm was stolen or had an altered or obliterated serial number. 11.C. Application of Subsection (b)(5). or (c). (a)(4)(A). § 921(a)(17)(B)). 9. or otherwise dispose of firearms to another individual.2(a)(2).g.— Under subsection (b)(7). (2) the offense involved multiple National Firearms Act weapons (e. machineguns.g. if a record-keeping offense was committed to conceal a substantive firearms or ammunition offense. the offense level is increased to the offense level for the substantive firearms or ammunition offense (e. for purposes of applying subsection (a)(1) and (a)(2). Prior Felony Convictions. use only those felony convictions that are counted separately under §4A1. transfer. (ii) – 252 – .—A defendant who is subject to an enhanced sentence under the provisions of 18 U. (3) the offense involved large quantities of armor-piercing ammunition (defined at 18 U. § 924(e) is an Armed Career Criminal. (3).S. or disposal of a firearm to an individual— (I) (II) whose possession or receipt of the firearm would be unlawful. See §4B1. §4A1.S. or (4) the offense posed a substantial risk of death or bodily injury to multiple individuals (see Application Note 7). In addition. Application of Subsection (b)(7). (b). See §4A1. or (a)(6) are also counted for purposes of determining criminal history points pursuant to Chapter Four. (2). or otherwise disposed of two or more firearms to another individual.C. (a)(2). destructive devices).—An upward departure may be warranted in any of the following circumstances: (1) the number of firearms substantially exceeded 200. regardless of whether anything of value was exchanged.—Subsection (b)(5) applies.1(a). military type assault rifles. or received two or more firearms with the intent to transport. Upward Departure Provisions. or (4)(A). use only those felony convictions that receive criminal history points under §4A1.1(a).. Part A (Criminal History).2. (a)(4)(B). transfer. or who intended to use or dispose of the firearm unlawfully. comment. 10.— (A) In General.S. (n.3). 13. or (c). if the defendant— (i) transported.§2K2.. non-detectable ("plastic") firearms (defined at 18 U. Prior felony conviction(s) resulting in an increased base offense level under subsection (a)(1). the offense level is increased to the offense level applicable to the sale of a firearm to a prohibited person).4. Armed Career Criminal.

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

amendment 669). (b) – 254 – . amendment 471). 1987.§2K2. effective November 1. Amended effective November 1. 1998 (see Appendix C. regardless of whether a criminal charge was brought. or Explosive During or in Relation to Certain Crimes (a) If the defendant. whether or not convicted of another crime. and November 1. state. §2K2. [Deleted] Historical Note: Section 2K2. and 696). §2K2. November 1. A former §2K2. amendment 374). amendment 478). November 1.2 effective November 1. or With Knowledge that It Will Be Used in Committing Another Offense). November 1. 1987. 1989 (see Appendix C.2 (Unlawful Trafficking and Other Prohibited Transactions Involving Firearms). amendments 578 and 586). amendment 189). 1990 (see Appendix C. Except as provided in subsection (c). November 1. was convicted of violating section 844(h) of title 18. whether or not convicted of another crime. amendment 189). 2004 (see Appendix C. 1992 (see Appendix C. 1991 (see Appendix C. effective November 1. the guideline sentence is the minimum term of imprisonment required by statute. 2005 (see Appendix C. amendment 605). Transporting.3 (Prohibited Transactions in or Shipment of Firearms and Other Weapons). 2009 "Another offense". was deleted by consolidation with §2K2. November 1. Chapters Three (Adjustments) and Four (Criminal History and Criminal Livelihood) shall not apply to that count of conviction. amendment 34). 2001 (see Appendix C. amendment 522). November 1. was convicted of violating section 924(c) or section 929(a) of title 18. Chapters Three and Four shall not apply to that count of conviction. other than the explosive or firearms possession or trafficking offense. United States Code. or a conviction obtained. 2007 (see Appendix C. [Deleted] Historical Note: Section 2K2. 1989 (see Appendix C. for purposes of subsection (c)(1). amended effective January 15. amendment 333). 1987. an upward departure under §5K2. 1995 (see Appendix C. amendment 646). 691. effective November 1. means any federal. was deleted by consolidation with §2K2. Shipping or Transferring a Firearm or Ammunition With Intent to Commit Another Offense. November 1. amendment 189).1 effective November 1. or local offense.3 (Receiving. November 1.—In a case in which the defendant used or possessed a firearm or explosive to facilitate another firearms or explosives offense (e. November 1.g. amendment 707). if the defendant. amendments 568 and 575). November 1. 1990 (see Appendix C. 1989 (see Appendix C.1 GUIDELINES MANUAL November 1. amendment 333). (D) Upward Departure Provision.3. Use of Firearm.4. §2K2.. 1997 (see Appendix C. amendment 189). 2000 (see Appendix C. November 1. amendment 374). 1991 (see Appendix C. November 1. was deleted by consolidation with §2K2. amendments 629-631).1 effective November 1. United States Code. November 1. 1991 (see Appendix C. 2006 (see Appendix C. the defendant used or possessed a firearm to protect the delivery of an unlawful shipment of explosives). 2002 (see Appendix C. the guideline sentence is the term of imprisonment required by statute. 1988 (see Appendix C. Historical Note: Effective November 1. Armor-Piercing Ammunition.2. amendment 374). amendments 679 and 680). November 1.6 (Weapons and Dangerous Instrumentalities) may be warranted. amendments 686. 1993 (see Appendix C. November 1. 1989 (see Appendix C.

C.—In a case in which the guideline sentence is determined under subsection (b).g. Except as provided in subsection (c). Upward Departure Provision.—Section 844(h) of title 18. provide mandatory minimum terms of imprisonment (e. Application of Subsection (b). §§ 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. the guideline sentence for a defendant convicted under 18 U. is determined to be a career offender under §4B1. United State Code. Each of 18 U. United States Code.S. Application of Subsection (a). Except for §§3E1.. § 844(h) is the term required by that statute. a sentence above the minimum term required by 18 U.C. Application Notes: 1. not less than five years).4 (c) If the defendant (1) was convicted of violating section 924(c) or section 929(a) of title 18. 2. A departure may be warranted.C. 929(a). (B) – 255 – .1. § 924(c) or § 929(a). § 924(c) or § 929(a) offense but is not determined to be a career offender under §4B1. the fine guideline shall be the fine guideline that would have been applicable had there only been a conviction for the underlying offense.C. United States Code.S.S. and 4B1.—Sections 924(c) and 929(a) of title 18. and (2) as a result of that conviction (alone or in addition to another offense of conviction).S.November 1. the guideline sentence shall be determined under §4B1.1 (Acceptance of Responsibility). 4B1.C.2 (Definitions of Terms Used in Section 4B1.1 (Career Offender). Accordingly.S. in a case in which the defendant is convicted under 18 U. 924(c). Chapters Three and Four shall not apply to that count of conviction. also requires a term of imprisonment imposed under this section to run consecutively to any other term of imprisonment.1.1). to reflect the seriousness of the defendant’s criminal history in a case in which the defendant is convicted of an 18 U. Special Instructions for Fines (1) Where there is a federal conviction for the underlying offense. (d) Commentary Statutory Provisions: 18 U. for example. 2009 GUIDELINES MANUAL §2K2.S. This guideline shall be used as a consolidated fine guideline for both the underlying offense and the conviction underlying this section.C. § 924(c) or § 929(a) is an upward departure from the guideline sentence.1(c). provides a mandatory term of imprisonment of 10 years (or 20 years for the second or subsequent offense). the guideline sentence is the minimum term required by the relevant statute. United State Code.— (A) In General. §§ 844(h). Section 844(h) of title 18.

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

brandishing. 6.S.1 (Imposition of a Term of Supervised Release). 1989 (see Appendix C. Background: Section 844(h) of title 18.1(c). November 1. Chapters Three and Four. November 1. § 844(h). 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). any specific offense characteristic for explosive or firearm discharge.2. United States Code. 2002 (see Appendix C. amendments 598. although a fine is authorized under 18 U. or § 929(a) in that any specific offense characteristic for possession. as provided in §4B1. Such offenses are excluded from application of those chapters because the guideline sentence for each offense is determined only by the relevant statute. 1993 (see Appendix C. Fines. November 1. or possession is not applied in respect to such underlying offense. 7. 599.S. use.C. other than §§4B1. amendment 696). or § 929(a). Terms of Supervised Release. This is required because the offense level for the underlying offense may be reduced when there is also a conviction under 18 U. amendment 190). Possession of Firearm or Dangerous Weapon in Federal Facility.— Subsection (d) sets forth special provisions concerning the imposition of fines. amendment 405). or discharge of a firearm is not applied (see Application Note 4). §2K2. 1990 (see Appendix C. amendment 642). brandishing. Sections 924(c) and 929(a) of title 18. 1987. United States Code. In determining the guideline sentence for those cases covered by subsection (c): (A) the adjustment in §3E1. and 600).1 (Procedure for Determining Offense Level on Multiple Counts) and 5G1. To avoid double counting. shall apply. provide mandatory minimum terms of imprisonment. § 924(c).—Except for those cases covered by subsection (c). use.November 1. See §§3D1. 2009 GUIDELINES MANUAL §2K2. The Commission has not established a fine guideline range for the unusual case in which there is no conviction for the underlying offense.1 and 4B1.5. November 1. 2006 (see Appendix C.C. and (B) no other adjustments in Chapter Three and no provisions of Chapter Four.1 (Acceptance of Responsibility) may apply.C.— Imposition of a term of supervised release is governed by the provisions of §5D1. Amended effective November 1. Possession or Discharge of Firearm in School Zone (a) (b) Base Offense Level: 6 Specific Offense Characteristic (1) If -(A) the defendant unlawfully possessed or caused any firearm or dangerous weapon to be present in a federal court facility. A sentence imposed pursuant to any of these statutes must be imposed to run consecutively to any other term of imprisonment. 1991 (see Appendix C. § 844(h).5 5. 2000 (see Appendix C. when a sentence under this section is imposed in conjunction with a sentence for an underlying offense. § 3571. November 1. § 924(c).2. do not apply Chapter Three (Adjustments) and Chapter Four (Criminal History and Criminal Livelihood) to any offense sentenced under this guideline. or – 257 – . amendments 481 and 489). November 1.S. Where there is also a conviction for the underlying offense. Historical Note: Effective November 1. provides a mandatory term of imprisonment.

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

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

effective November 1. (2) Commentary Statutory Provision: 18 U. Part A.6 GUIDELINES MANUAL November 1.§2K2. amendment 481). §2K3. apply §2X1. 1987.2.2 effective November 1. § 1716. or Conspiracy) in respect to the intended offense. 1993 (see Appendix C. amendment 670). § 1716 (felony provisions only).1. or If death resulted.1 (Unlawfully Transporting Hazardous Materials in Commerce). – 260 – . * * * * * 3. 1990 (see Appendix C.2 (Groups of Closely Related Counts).C.C. Solicitation. amendment 481).1 (Attempt. 2009 includes a count of conviction for that other felony offense.S.S. apply the most analogous offense guideline from Chapter Two. 2004 (see Appendix C. amendment 334). was deleted by consolidation with §2Q1. Background: This guideline applies only to the felony provisions of 18 U. the counts of conviction for the 18 U. Historical Note: Effective November 1. or (B) to injure the mails or other property. § 931 offense and that other felony offense shall be grouped pursuant to subsection (c) of §3D1. Amended effective November 1.C. 1987. MAILING INJURIOUS ARTICLES Historical Note: Effective November 1. The Commission has not promulgated a guideline for the misdemeanor provisions of this statute. 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. [Deleted] Historical Note: Section 2K3. 1993 (see Appendix C.S. Historical Note: Effective November 1. §2K3. Subpart 1 (Homicide).

November 1, 2009

GUIDELINES MANUAL

§2L1.1

PART L - OFFENSES INVOLVING IMMIGRATION, NATURALIZATION, AND PASSPORTS

1.

IMMIGRATION

§2L1.1.

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

(2)

(3) (b)

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

(2)

Increase in Level add 3 add 6 add 9.

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

(4)

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§2L1.1
(5)

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November 1, 2009

(Apply the Greatest): (A) If a firearm was discharged, increase by 6 levels, but if the resulting offense level is less than level 22, increase to level 22. If a dangerous weapon (including a firearm) was brandished or otherwise used, increase by 4 levels, but if the resulting offense level is less than level 20, increase to level 20. If a dangerous weapon (including a firearm) was possessed, increase by 2 levels, but if the resulting offense level is less than level 18, increase to level 18.

(B)

(C)

(6)

If the offense involved intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person, increase by 2 levels, but if the resulting offense level is less than level 18, increase to level 18. If any person died or sustained bodily injury, increase the offense level according to the seriousness of the injury: Death or Degree of Injury (A) (B) (C) (D) Bodily Injury Serious Bodily Injury Permanent or Life-Threatening Bodily Injury Death Increase in Level add 2 levels add 4 levels add 6 levels add 10 levels.

(7)

(8)

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

(B)

(9)

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

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GUIDELINES MANUAL

§2L1.1

(c) (1)

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

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

3.

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November 1, 2009

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

(C) 4.

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

5.

6.

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

§2L1.2.

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

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§2L1.2

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

(C) (D) (E)

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

(ii)

(iii)

(iv)

(B)

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

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November 1, 2009

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

Immigration

and

Nationality

Act

(8

U.S.C.

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

(iii)

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

(iv)

(v)

(II)

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

(vi)

"Human trafficking offense" means (I) any offense described in 18 U.S.C. § 1581, § 1582, § 1583, § 1584, § 1585, § 1588, § 1589, § 1590, or § 1591; or (II) an
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§2L1.2

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

(viii)

2.

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

3.

(B)

4.

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

(B)

5.

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

7.

§2L1.2

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November 1, 2009

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

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

* * * * *

2.

NATURALIZATION AND PASSPORTS

§2L2.1.

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

(2)

Increase in Level add 3 add 6 add 9.

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

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GUIDELINES MANUAL

§2L2.1

(4)

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

(5)

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

3.

4.

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§2L2.1
5.

GUIDELINES MANUAL

November 1, 2009

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

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

§2L2.2.

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

(2)

(3)

(c)

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

(B)

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GUIDELINES MANUAL

§2L2.4

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

2.

3.

4.

5.

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

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

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

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Historical Note: Effective November 1. GUIDELINES MANUAL November 1.5. 2009 Failure to Surrender Canceled Naturalization Certificate (a) Base Offense Level: 6 Commentary Statutory Provision: 18 U. 1987.C.5 §2L2. § 1428.§2L2.S. – 272 – .

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

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

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

writing.C. (c). § 793(d) or (e). §2M3. Amended effective November 1. Unauthorized Receipt of Classified Information (a) Base Offense Level: (1) (2) 29. blueprint.C. and the unauthorized receipt of classified information.3 may apply. 798. sketch.2 2. §§ 793(d).§2M3.S. amendment 654). 1987. the unauthorized disclosure to a foreign government or a communist organization of classified information by a government employee. photographic negative.1. photograph. If the defendant was convicted of 18 U.S. Background: The statutes covered in this section proscribe willfully transmitting or communicating to a person not entitled to receive it a document.C. 1993 (see Appendix C. model. map. See Commentary to §2M3. (e). instrument. 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. signal book.3. 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.S. Unauthorized Disclosure to a Foreign Government or a Communist Organization of Classified Information by Government Employee.3. §2M3.S. or 24. (g). appliance. Historical Note: Effective November 1. 2009 If the defendant is convicted under 18 U. 1987. Commentary Statutory Provisions: 18 U.C. GUIDELINES MANUAL November 1. – 276 – . amendment 481). Historical Note: Effective November 1.2. code book. Disclosure of Classified Cryptographic Information. plan. 2. Proof that the item was communicated with reason to believe that it could be used to the injury of the United States or the advantage of a foreign nation is required only where intangible information is communicated under 18 U.C. Amended effective November 1. See Commentary to §2M3. Transmitting National Defense Information. § 793(d) or (e) for the willful transmission or communication of intangible information with reason to believe that it could be used to the injury of the United States or the advantage of a foreign nation.S. or note relating to the national defense. 50 U. Application Notes: 1. § 793(d) or (e). § 783(b). otherwise. 2003 (see Appendix C. apply §2M3.

but rather the loss of classified information by the gross negligence of an employee of the federal government or a federal contractor.November 1. or 13. 1993 (see Appendix C.6 (Disclosure of Classified Cryptographic Information).S. was deleted by consolidation with §2M3. Background: Offenses prosecuted under this statute generally do not involve subversive conduct on behalf of a foreign power. effective November 1. Tampering with Restricted Data Concerning Atomic Energy (a) Base Offense Level: 24 Commentary Statutory Provision: 42 U. 1987. § 2276.C.3 effective November 1. §2M3. Commentary Statutory Provision: 18 U. Application Note: 1.6 §2M3. § 793(f).S. Historical Note: Effective November 1. – 277 – . Application Note: 1. See Commentary to §2M3.1.C.6. 1987. amendment 481). 2009 GUIDELINES MANUAL §2M3. if top secret information was lost. §2M3. otherwise.5. See Commentary to §2M3.4. [Deleted] Historical Note: Section 2M3. Historical Note: Effective November 1.1. Losing National Defense Information (a) Base Offense Level: (1) (2) 18. 1987.

8 (Receipt of Classified Information).1. was deleted by consolidation with §2M3. § 421 by defendants. 1993 (see Appendix C. Amended effective November 1.C. § 421 not covered by this guideline may vary in the degree of harm they inflict.S. § 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. was deleted by consolidation with §2M3. §2M3.S.§2M3. 2. This guideline applies only to violations of 50 U. effective November 1. This guideline does not apply to violations of 50 U. or having had.S. 1993 (see Appendix C.S.C.7 (Unauthorized Disclosure to Foreign Government or a Communist Organization of Classified Information by Government Employee). who disclosed such information without having or having had authorized access to classified information. 2009 Historical Note: Section 2M3. This guideline does not apply to violations of 50 U. § 421. Historical Note: Effective November 1. See §2X5. 1987.C. 2001 (see Appendix C. Application Notes: 1. or 25. if the information was disclosed by a person with authorized access only to other classified information.C.3 effective November 1.C. See Commentary to §2M3. Background: The alternative base offense levels reflect a statutory distinction by providing a greater base offense level for a violation of 50 U. authorized access to classified information. amendment 636).S. 1987.1 (Other Offenses). and the court should impose a sentence that reflects such harm.C. §2M3.7. 3. – 278 – . § 421 shall be imposed consecutively to any other term of imprisonment. Disclosure of Information Identifying a Covert Agent (a) Base Offense Level: (1) 30. Violations of 50 U. § 421 by defendants who disclosed such information without having. effective November 1. amendment 481). including journalists. A term of imprisonment imposed for a conviction under 50 U.S. 1987.C.3 effective November 1. [Deleted] GUIDELINES MANUAL November 1. [Deleted] Historical Note: Section 2M3.S. § 421 by persons who have or previously had authorized access to classified information. amendment 481). or who had authorized access to classified information identifying a covert agent. if the information was disclosed by a person with.9.7 §2M3. (2) Commentary Statutory Provision: 50 U.8.

§2M5. 1990 (see Appendix C. Amended effective November 1. 2009 GUIDELINES MANUAL §2M5. Historical Note: Effective November 1. 1987. Financial Transactions with Countries Supporting International Terrorism (a) Base Offense Level (Apply the greater): (1) 26. Application Note: 1. increase by 6 levels. § 462. * * * * * 5.C. PROHIBITED FINANCIAL TRANSACTIONS AND EXPORTS. 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. amendment 336). Subsection (b)(1) does not distinguish between whether the offense was committed in peacetime or during time of war or armed conflict. 2002 (see Appendix C. Evasion of Export Controls. an upward departure may be warranted. AND PROVIDING MATERIAL SUPPORT TO DESIGNATED FOREIGN TERRORIST ORGANIZATIONS Historical Note: Effective November 1. if (A) national security controls or controls relating to the proliferation of nuclear. EVASION OF MILITARY SERVICE §2M4.S. biological.1. amendment 637).November 1. or chemical weapons or materials – 279 – . App. Commentary Statutory Provision: 50 U.1.1 * * * * * 4. If the offense was committed when persons were being inducted for compulsory military service during time of war or armed conflict. Amended effective November 1. 1987.

a departure from the guidelines may be warranted.S. 50 U. See Chapter Five.S. 2009 were evaded. §2M5. 2001 (see Appendix C. 2002 (see Appendix C. §§ 2401-2420.C. When national security controls are violated. In addition to the provisions for imprisonment. and whether there were multiple occurrences. or claim against: any goods or tangible items that were the subject of the violation. handguns. the defendant is subject to forfeiture of any interest in. – 280 – . whichever is greater. Historical Note: Effective November 1. App. November 1. Commentary Statutory Provisions: 18 U. and any proceeds obtained directly or indirectly as a result of the violation. and the number of weapons did not exceed ten. The maximum fine for individual defendants is $250. § 2410 contains provisions for criminal fines and forfeiture as well as civil penalties. or shotguns). In determining the sentence within the applicable guideline range. Exportation of Arms. Application Notes: 1. Munitions.§2M5. the maximum fine is five times the value of the exports involved or $1 million. Amended effective November 1.1 GUIDELINES MANUAL November 1. in addition to any other sanction. 1987. the volume of commerce involved.C. property used to export or attempt to export that was the subject of the violation. 14. "a country supporting international terrorism" means a country designated under section 6(j) of the Export Administration Act (50 U. Part K (Departures). security of. except as provided in subdivision (2) below.2. the extent of planning or sophistication. § 2332d. For purposes of subsection (a)(1)(B). if the offense involved only non-fully automatic small arms (rifles. otherwise. In the case of corporations. or Military Equipment or Services Without Required Validated Export License (a) Base Offense Level: (1) (2) 26. amendment 637). 50 U. 2405). the court may consider the degree to which the violation threatened a security interest of the United States.000.S. In the case of a violation during time of war or armed conflict.C. App.C. Where such factors are present in an extreme form. App. or (B) the offense involved a financial transaction with a country supporting international terrorism.S. 2. 4. 3. or (2) 14. an upward departure may be warranted. amendment 633).

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

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

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

§ 178(1). if the resulting offense level is greater than that determined above. 2291.1 GUIDELINES MANUAL November 1. § 229F(1). or (iii) the degree of injury is between that specified in subdivisions (i) and (ii). decontaminate. apply §2A2. (c) Cross References (1) If the offense resulted in death. Chapter Three.C. 2009 4 levels. Attempted Murder). governmental.—For purposes of this guideline: "Biological agent" has the meaning given that term in 18 U. Definitions. apply §2A1. or (ii) a substantial expenditure of funds to clean up. (a)(4). or §2A1. 2131. 2332h. and (D)). (2) (d) Special Instruction (1) If the defendant is convicted of a single count involving (A) conduct that resulted in the death or permanent. 175b. and (B) includes an organization designated by the Secretary of State as a – 284 – . 1992(a)(2). (a)(3). §§ 175. if the resulting offense level is greater than that determined above. 842(p)(2) (only with respect to weapons of mass destruction as defined in 18 U. or (B) conduct tantamount to the attempted murder of more than one victim.C. life-threatening. (3) If (A) subsection (a)(2). (b)(2). increase by 3 levels.2 (Second Degree Murder) otherwise. or business functions or services. 831. (ii) any victim sustained serious bodily injury.1 (Assault with Intent to Commit Murder. increase by 2 levels.S. Part D (Multiple Counts) shall be applied as if such conduct in respect to each victim had been contained in a separate count of conviction.S. 175c.C. 42 U.C. For additional statutory provision(s).C. "Chemical weapon" has the meaning given that term in 18 U. 832.S. 2122.S. "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. 2283. Commentary Statutory Provisions: 18 U. (C). and (B) the offense resulted in (i) substantial disruption of public. (a)(3). or serious bodily injury of more than one victim. §§ 2077(b). see Appendix A (Statutory Index).S. increase by 4 levels. or (a)(4) applies. If the offense was tantamount to attempted murder. 229.1 (First Degree Murder) if the death was caused intentionally or knowingly. or otherwise respond to the offense.§2M6. Application Notes: 1. § 2332a(c)(2)(B).

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

November 1. 1987. Amended effective November 1. 2007 (see Appendix C.C. – 286 – . if the offense was committed with intent to injure the United States or to aid a foreign nation. violations of statutes dealing with rules and regulations. 2002 (see Appendix C. amendment 633). amendment 686). Amended effective November 1. or 6. 2006 (see Appendix C. Historical Note: Effective November 1. and Regulations (a) Base Offense Level (Apply the greater): (1) 30. GUIDELINES MANUAL November 1. November 1. November 1.—Subsection (d) applies in any case in which the defendant is convicted of a single count involving (A) the death or permanent. 2001 (see Appendix C. (2) Commentary Statutory Provision: 42 U. license conditions. for example. or (B) conduct tantamount to the attempted murder of more than one victim.2.S. §2M6. amendment 679). amendment 637). Background: This section applies to offenses related to nuclear energy not specifically addressed elsewhere.§2M6. § 2273. 2005 (see Appendix C. November 1. 1987. Historical Note: Effective November 1.1 3. 1990 (see Appendix C. This provision covers. amendment 359). amendment 655). amendments 699 and 700). or serious bodily injury of more than one victim. Rules. and orders of the Nuclear Regulatory Commission and the Department of Energy. November 1. life-threatening. Violation of Other Federal Atomic Energy Agency Statutes. 2009 Application of Special Instruction. 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). 2003 (see Appendix C.

increase by 2 levels. Chapter Three. or §2A1. Amended effective November 1. 2009 (see Appendix C. If the offense involved extortion. apply §2B3.1. AND ODOMETER LAWS Historical Note: Effective November 1.2 (Second Degree Murder) in any other case. apply §2A2. increase by 4 levels. If the offense was tantamount to attempted murder.C. or (B) conduct tantamount to the attempted murder of more than one victim. DRUGS. or (C) if the degree of injury is between that specified in subdivisions (A) and (B). AGRICULTURAL PRODUCTS. – 287 – . CONSUMER PRODUCTS.November 1. life-threatening.2 (Extortion by Force or Threat of Injury or Serious Damage) if the resulting offense level is greater than that determined above. or serious bodily injury of more than one victim. § 1365(a).S. 2009 GUIDELINES MANUAL §2N1. (2) (3) (d) Special Instruction (1) If the defendant is convicted of a single count involving (A) the death or permanent.1 (Assault with Intent to Commit Murder. (e).1 (First Degree Murder) if the death was caused intentionally or knowingly. apply §2A1. amendment 733). (c) Cross References (1) If the offense resulted in death. 1. Commentary Statutory Provisions: 18 U.1 PART N . Tampering or Attempting to Tamper Involving Risk of Death or Bodily Injury (a) (b) Base Offense Level: 25 Specific Offense Characteristic (1) (A) If any victim sustained permanent or life-threatening bodily injury.OFFENSES INVOLVING FOOD. TAMPERING WITH CONSUMER PRODUCTS §2N1. Part D (Multiple Counts) shall be applied as if the defendant had been convicted of a separate count for each such victim. (B) if any victim sustained serious bodily injury. Attempted Murder) if the resulting offense level is greater than that determined above. 1987. increase by 3 levels.

(d). 2. Commentary Statutory Provisions: 18 U.3. an upward departure may be warranted. and neither caused nor was intended to cause bodily injury. extreme psychological injury.S. 1987. Historical Note: Effective November 1.1 Application Notes: 1.C. – 288 – . or caused extreme psychological injury or substantial property damage or monetary loss. Providing False Information or Threatening to Tamper with Consumer Products (a) (b) Base Offense Level: 16 Cross Reference (1) If the offense involved extortion.§2N1. November 1. 1991 (see Appendix C. In the unusual case in which the offense did not cause a risk of death or serious bodily injury. Historical Note: Effective November 1. amendment 338). 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).S. Application Note: 1. 1990 (see Appendix C. Part K (Departures). 1990 (see Appendix C. See Chapter Five. § 1365(c). Tampering With Intent to Injure Business (a) Base Offense Level: 12 Commentary Statutory Provision: 18 U. 1987. apply §2B3. bodily injury. §2N1. or substantial property damage or monetary loss resulted. amendment 376). an upward departure may be warranted. GUIDELINES MANUAL November 1. or is intended to cause. If death or bodily injury.C. amendment 339). or causes. Amended effective November 1.2 (Extortion by Force or Threat of Injury or Serious Damage). a downward departure may be warranted.2. § 1365(b). 2009 The base offense level reflects that this offense typically poses a risk of death or serious bodily injury to one or more victims. Where the offense posed a substantial risk of death or serious bodily injury to numerous victims. §2N1. Amended effective November 1.

(a)(2). 620. 617. 676. Part K (Departures). Amended effective November 1.1. FOOD. For additional statutory provision(s). AGRICULTURAL PRODUCTS. 122.S. (2) Commentary Statutory Provisions: 7 U. 331. apply that other offense guideline if the resulting offense level is greater than that determined above. 21 U. § 331 after sustaining a prior conviction under 21 U.C.S. §2N2. Agricultural Product. 2009 GUIDELINES MANUAL §2N2.C. 333(a)(1). Historical Note: Effective November 1. Part K (Departures). 611. or to conceal.November 1. (b). an offense covered by another offense guideline. 8313. (c) Cross References (1) If the offense involved fraud. 6810. 1987. Violations of Statutes and Regulations Dealing With Any Food. See Chapter Five.S. 610. §§ 150bb.C. Cosmetic.C. a downward departure may be warranted. increase by 4 levels. 7734. Where only negligence was involved. Property Destruction. 151-158. 42 U. 619. an upward departure may be warranted. or Consumer Product (a) (b) Base Offense Level: 6 Specific Offense Characteristic (1) If the defendant was convicted under 21 U. Application Notes: 1. § 331. 2009 (see Appendix C. – 289 – . apply §2B1. 614.1 Application Note: 1. 1987.C. See Chapter Five. If the offense was committed in furtherance of. 134-134e. If death or bodily injury. Biological Product. §§ 115.1 (Theft. * * * * * 2. 463. This guideline assumes a regulatory offense that involved knowing or reckless conduct. § 262. AND CONSUMER PRODUCTS Historical Note: Effective November 1. DRUGS. 466. see Appendix A (Statutory Index).S. 458-461. 117. Drug.S. extreme psychological injury. or substantial property damage or monetary loss resulted. 150gg. amendment 733). Device. and Fraud). 642644.

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

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

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

Historical Note: Effective November 1. or a narcotic drug. or security of the institution or the life. 4. at the time of the offense. Providing or Possessing Contraband in Prison (a) Base Offense Level: (1) (2) 23. November 1.1(e) (recency) would be applicable. if the object was a firearm or destructive device. 1987. 4. methamphetamine. methamphetamine. If the adjustment in subsection (b)(1) applies as a result of conduct that involves an official victim. if the object was an alcoholic beverage. 1989 (see Appendix C. If the adjustment in subsection (b)(4) applies. or an employee of the Department of Justice. or a narcotic drug). November 1. ammunition. 13.2. United States or foreign currency. Criminal history points under Chapter Four.1(b) (for the sentence being served at the time of the escape). (3) (4) (b) Specific Offense Characteristic (1) If the defendant was a law enforcement or correctional officer or employee. if the object was a weapon (other than a firearm or a destructive device).2 2. any object that might be used as a weapon or as a means of facilitating escape. 2009 GUIDELINES MANUAL §2P1. amendments 200 and 201). in the case of a defendant serving a one-year sentence of imprisonment at the time of the escape. 1991 (see Appendix C. 5. Part A (Criminal History) are to be determined independently of the application of this guideline.3 (Abuse of Position of Trust or Use of Special Skill).2 (Official Victim). no adjustment is to be made under §3B1. Part K (Departures). 1990 (see Appendix C. LSD. amendment 406). criminal history points from §4A1. PCP. For example. §4A1. an upward departure may be warranted. 6. or safety of an individual. PCP. §2P1. if the object was any other object that threatened the order.November 1. Amended effective November 1. discipline. do not apply §3A1. 6. amendment 341). 3. – 293 – . "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). or a controlled substance (other than LSD.1(d) (custody status). See Chapter Five. If death or bodily injury resulted. and §4A1. increase by 2 levels. health.

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

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

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

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

Historical Note: Effective November 1. 2009 upon the harm resulting from the emission. a departure of up to two levels in either direction from the offense levels prescribed in these specific offense characteristics may be appropriate. release or discharge. The last two specific offense characteristics apply to recordkeeping offenses. See §5K2. 1987. A decrease of 2 levels is provided. Depending upon the nature of the contamination involved. the quantity and nature of the substance or pollutant. – 298 – . 7.—If the offense caused extreme psychological injury. Terrorism. Amended effective November 1. however. amendment 672). Depending upon the nature and quantity of the substance involved and the risk associated with the offense. If death or serious bodily injury results. 8. See Application Note 4 of the Commentary to §3A1. 1993 (see Appendix C. an upward departure may be warranted. for "simple recordkeeping or reporting violations" under §2Q1. the duration of the offense and the risk associated with the violation. or to retaliate against government conduct. an upward departure would be warranted.2 GUIDELINES MANUAL November 1.— (A) Civil Adjudications and Failure to Comply with Administrative Order.3 (Extreme Psychological Injury). amendment 481). 2004 (see Appendix C. Subsection (b)(4) applies where the offense involved violation of a permit. November 1. See Chapter Five. an upward departure may be warranted.4 (Terrorism). Although other sections of the guidelines generally prescribe a base offense level of 6 for regulatory violations. Extreme Psychological Injury. a departure would be called for. evacuation or cleanup at substantial expense has been required. amendment 553).2 prescribes a base offense level of 8 because of the inherently dangerous nature of hazardous and toxic substances and pesticides. §2Q1. Depending upon the nature of the risk created and the number of people placed at risk. or where there was a failure to obtain a permit when one was required. a departure of up to two levels either upward or downward could be warranted. The first four specific offense characteristics provide enhancements when the offense involved a substantive violation. 6. (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)(3) provides an enhancement where a public disruption. 9.3 (Departures Based on Inadequacy of Criminal History Category).2(b)(6).—In a case in which the defendant has previously engaged in similar misconduct established by a civil adjudication or has failed to comply with an administrative order. November 1. a departure of up to two levels either upward or downward may be warranted. Other Upward Departure Provisions. Subsection (b)(2) applies to offenses where the public health is seriously endangered.§2Q1. 1997 (see Appendix C.—If the offense was calculated to influence or affect the conduct of government by intimidation or coercion. a departure of up to three levels upward or downward may be warranted. See §4A1. Part K (Departures).

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

the duration of the offense and the risk associated with the violation. Background: This section parallels §2Q1. (B) any victim sustained serious bodily injury. Subsection (b)(4) applies where the offense involved violation of a permit. if the offense involved a threat to tamper with a public water system but did not involve any conduct evidencing an intent to carry out the threat. – 300 – . Depending upon the nature of the contamination involved. If death or serious bodily injury results. (3) (b) Specific Offense Characteristics (1) If (A) any victim sustained permanent or life-threatening bodily injury. release or discharge. 7. See §4A1.3 GUIDELINES MANUAL November 1. Depending upon the nature of the risk created and the number of people placed at risk. 22. Tampering or Attempted Tampering with a Public Water System. an upward departure may be warranted. a departure of up to two levels in either direction could be warranted. Part K (Departures).4.2 but applies to offenses involving substances which are not pesticides and are not designated as hazardous or toxic. amendment 205). 2009 upon the harm resulting from the emission. or where there was a failure to obtain a permit when one was required. a departure would be called for. 6. §2Q1. 1989 (see Appendix C. a departure of up to two levels in either direction from that prescribed in these specific offense characteristics may be appropriate. Depending upon the nature and quantity of the substance involved and the risk associated with the offense. See Chapter Five. Threatening to Tamper with a Public Water System (a) Base Offense Level (Apply the greatest): (1) (2) 26. the quantity and nature of the substance or pollutant.3 (Adequacy of Criminal History Category). 5. a departure of up to three levels upward or downward may be warranted.§2Q1. a departure of up to two levels in either direction may be warranted. or 16. Where a defendant has previously engaged in similar misconduct established by a civil adjudication or has failed to comply with an administrative order. Amended effective November 1. and (B) any conduct evidencing an intent to carry out the threat. Subsection (b)(3) provides an enhancement where a public disruption. increase by 4 levels. Historical Note: Effective November 1. 1987. evacuation or cleanup at substantial expense has been required. 8. if the offense involved (A) a threat to tamper with a public water system. Subsection (b)(2) applies to offenses where the public health is seriously endangered.

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

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

2 (Aggravated Assault). 1989 (see Appendix C. Background: The statute covered by this guideline proscribes a wide variety of conduct. Subsections (a)(1)-(a)(3) cover the more serious forms of this offense. Historical Note: Effective November 1. 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.000. or plants (i) exceeded $2. increase by the number of levels from the table in §2B1. 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. amendment 208). increase by 2 levels. November 1. CONSERVATION AND WILDLIFE §2Q2. Offenses Involving Fish.000. November 1. amendment 313). wildlife. otherwise. amendment 617).C. 2001 (see Appendix C. increase by 2 levels.1 (Theft.1.000 but did not exceed $5. If the offense (A) involved fish. wildlife. Property Destruction. 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. 1990 (see Appendix C. or plants. use the greater): (A) If the market value of the fish. 2002 (see Appendix C. or (B) involved a pattern of similar violations.S.November 1. or (B) otherwise created a significant risk of infestation or disease transmission potentially harmful to humans. wildlife. (If more than one applies.1 circumstances manifesting extreme indifference to such risk. § 1864. increase by 1 level. amendment 646). or (ii) exceeded $5. and Fraud) corresponding to that amount. Wildlife. or plants that were not quarantined as required by law. or (4) 6. Commentary Statutory Provision: 18 U. * * * * * 2. Amended effective November 1. 2009 GUIDELINES MANUAL §2Q2. the offense level from §2A2. fish. or – 303 – (2) (3) .

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

2001 (see Appendix C. or plants. Cultural Heritage Resources. §2Q2. amendment 534). the Bald Eagle Protection Act. or Destruction of. 1987. the Marine Mammal Protection Act. 1995 (see Appendix C.2 6. 1989 (see Appendix C. 2007 (see Appendix C. amendments 209 and 210).5 (Theft of. the Wild FreeRoaming Horses and Burros Act. or Receipt of Cultural Heritage Resources). 1989 (see Appendix C. the Fur Seal Act. 1992 (see Appendix C. and Plants). November 1.1 effective November 1. Historical Note: Effective November 1. November 1. Wildlife. Background: This section applies to violations of the Endangered Species Act. For purposes of subsection (c)(1). amendment 452). 1991 (see Appendix C. November 1. amendment 617).S. Unlawful Sale. amendment 209). wildlife.C. "cultural heritage resource" has the meaning given that term in Application Note 1 of the Commentary to §2B1. the Migratory Bird Treaty.2 (Lacey Act. and to violations of 18 U. 1987. amendment 41). was deleted by consolidation with §2Q2. Damage to. – 305 – . November 1. 2002 (see Appendix C. Smuggling and Otherwise Unlawfully Dealing in Fish. Exchange.2. Purchase. amendment 700). [Deleted] Historical Note: Section 2Q2.November 1. 1988 (see Appendix C. Amended effective January 15. Transportation. 2009 GUIDELINES MANUAL §2Q2. effective November 1. the Lacey Act. amendment 638). §§ 545 and 554 if the smuggling activity involved fish. amendment 407). November 1. November 1. November 1.

000 More than $40. use 20 percent of the volume of affected commerce.000. neither the minimum nor maximum multiplier shall be less than 0. the guideline fine range shall be from one to five percent of the volume of commerce. the volume of commerce should be treated cumulatively to determine a single. 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.500.000. If the volume of commerce attributable to the defendant was more than $1.000 More than $1. When applying §8C2.000 More than $250. (c) Special Instruction for Fines (1) For an individual. When multiple counts or conspiracies are involved.75.1 GUIDELINES MANUAL November 1. adjust the offense level as follows: Volume of Commerce (Apply the Greatest) (A) (B) (C) (D) (E) (F) (G) (H) More than $1.000.ANTITRUST OFFENSES §2R1.000.6 (Minimum and Maximum Multipliers).000.Organizations (1) In lieu of the pecuniary loss under subsection (a)(3) of §8C2. Bid-Rigging. 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.§2R1. (d) Special Instructions for Fines .000.000.000. increase by 1 level.000.1. combined offense level. (2) For purposes of this guideline.000 More than $100.4 (Base Fine).000 More than $10.000. use as the organization’s volume of commerce the – 306 – (2) (3) .000 Adjustment to Offense Level add 2 add 4 add 6 add 8 add 10 add 12 add 14 add 16.000 More than $1. 2009 PART R .000 More than $500. but not less than $20.000.000. In a bid-rigging case in which the organization submitted one or more complementary bids.

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

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

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

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

S. The fact that the defendant was involved in laundering criminally derived funds after the commission of the underlying offense.—For purposes of this guideline: "Crime of violence" has the meaning given that term in subsection (a)(1) of §4B1. sexual abuse. or abusive sexual contact involving a minor. "Criminally derived funds" means any funds derived.C. abetted. monetary transaction. Definitions. commanded.5 (Interpretation of References to Other Offense Guidelines).C.—Notwithstanding §1B1. or possession of material involving the sexual exploitation of a minor with intent to distribute. "Minor" means an individual under the age of 18 years. Application of Chapter Three Adjustments. 2009 GUIDELINES MANUAL §2S1. transfer. 1960 (but only with respect to unlicensed money transmitting businesses as defined in 18 U.C. application of any Chapter Three adjustment shall be – 311 – (B) (C) .— (A) Multiple Underlying Offenses. "Sexual exploitation of a minor" means an offense involving (A) promoting prostitution by a minor. to be derived from conduct constituting a criminal offense.2 (Definitions of Terms Used in Section 4B1. does not establish that the defendant committed. financial transaction. funds. the offense level for the underlying offense is to be determined under the procedures set forth in Application Note 3 of the Commentary to §1B1. or transmission.S. § 1960(b)(1)(C)). or by another person at the direction or approval of an authorized Federal official. or willfully caused the underlying offense. "Laundering funds" means making a transaction.C. or transporting or transferring property.November 1. aided. 2. transportation. procured. financial transaction. funds.S.5(c). see Appendix A (Statutory Index). Application Notes: 1. (C) distribution of material involving the sexual exploitation of a minor. or represented by a law enforcement officer. without additional involvement in the underlying offense. (B) sexually exploiting a minor by production of sexually explicit visual or printed material.S. 1957. Application of Subsection (a)(1). counseled. or transmission in violation of 18 U. §§ 1956. or monetary instrument involved in the transaction. "Laundered funds" means the property. induced. Defendants Accountable for Underlying Offense.3(a)(1)(A).—In cases in which subsection (a)(1) applies and there is more than one underlying offense.1).—In order for subsection (a)(1) to apply. in cases in which subsection (a)(1) applies. or a monetary instrument in violation of 18 U. or (D) aggravated sexual abuse. For additional statutory provision(s). § 1956 or § 1957. monetary transaction. the defendant must have committed the underlying offense or be accountable for the underlying offense under §1B1. § 1956 or § 1957.1 Commentary Statutory Provisions: 18 U.

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

2 (Engaging in Monetary Transactions in Property Derived from Specified Unlawful Activity). November 1. effective November 1. transportation. layering) of transactions. November 1. 5.November 1. the counts shall be grouped pursuant to subsection (c) of §3D1. shell corporations.2 excluded from consideration of whether that conviction receives criminal history points pursuant to Chapter Four. 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. Sophisticated laundering typically involves the use of— (i) (ii) (iii) fictitious entities. two or more levels (i. "sophisticated laundering" means complex or intricate offense conduct pertaining to the execution or concealment of the 18 U.1 effective November 1. 1991 (see Appendix C. involving criminally derived funds that were intended to appear legitimate. amendment 634). amendment 215). amendment 655). November 1. was deleted by consolidation with §2S1. amendments 212-214). (A) Sophisticated Laundering under Subsection (b)(3).S.. or transmissions. § 1956 offense. transfers. 6.2. §2S1. 2001 (see Appendix C.—If subsection (b)(3) applies. 1989 (see Appendix C. – 313 – . (iv) (B) Non-Applicability of Enhancement. 1987. 2003 (see Appendix C. 1987. and November 1. amendments 378 and 422). 2001 (see Appendix C. amendment 422). Part A (Criminal History). Grouping of Multiple Counts.—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.C. Historical Note: Effective November 1. amended effective November 1. do not apply subsection (b)(3) of this guideline. Amended effective November 1. or offshore financial accounts. 2009 GUIDELINES MANUAL §2S1. [Deleted] Historical Note: Section 2S1.2 (Groups of CloselyRelated Counts). amendment 634). (vi) During the course of an undercover government investigation.—For purposes of subsection (b)(3). the defendant made statements that the defendant engaged in any of the conduct described in subdivisions (i) through (iv). 1991 (see Appendix C. 1989 (see Appendix C.e.

§ 5318 or § 5318A. For additional statutory provision(s).S.§2S1.S. decrease the offense level to level 6. or (B) the offense involved bulk cash smuggling. or 6 plus the number of offense levels from the table in §2B1. § 1960 (but only with respect to unlicensed money transmitting businesses as defined in 18 U.C. 5326. If (A) subsection (a)(2) applies and subsections (b)(1) and (b)(2) do not apply. (C) the funds were the proceeds of lawful activity.S. apply the most appropriate guideline from Chapter Two. §§ 5313.C. Failure to File Currency and Monetary Instrument Report. – 314 – . § 6050I). 5322. § 1960(b)(1)(A) and (B)).S. if the defendant was convicted under 31 U.S. 26 U. Establishing or Maintaining Prohibited Accounts (a) Base Offense Level: (1) (2) 8.3. §§ 7203 (if a violation based upon 26 U. GUIDELINES MANUAL November 1. Commentary Statutory Provisions: 18 U. 31 U.3 §2S1. (B) the defendant did not act with reckless disregard of the source of the funds. United States Code. § 6050I). increase by 2 levels. Knowingly Filing False Reports. Property Destruction.1 (Theft. if subsection (a)(1) does not apply. 5314. increase by 2 levels. 5332. Failure to Report Cash or Monetary Transactions. 2009 Structuring Transactions to Evade Reporting Requirements. 5331.S. and Fraud) corresponding to the value of the funds.C. Bulk Cash Smuggling. Part T (Offenses Involving Taxation) if the resulting offense level is greater than that determined above. (b) Specific Offense Characteristics (1) If (A) the defendant knew or believed that the funds were proceeds of unlawful activity. or were intended to promote unlawful activity.C. and (B) committed the offense as part of a pattern of unlawful activity involving more than $100.S. and (D) the funds were to be used for a lawful purpose.C. see Appendix A (Statutory Index).C. 5324. 5318A(b). If the defendant (A) was convicted of an offense under subchapter II of chapter 53 of title 31. 5318.C. 5316. (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.000 in a 12-month period.

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

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

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

§ 6050I or § 7206(2))." its amount is to be determined by the same rules applicable in determining any other sentencing factor. and $2. In determining the total tax loss attributable to the offense (see §1B1. Under Note (A) to subsection (c)(1). In addition. 7203 (other than a violation based upon 26 U. Example 1: A defendant files a tax return reporting income of $40. Under the note to subsection (c)(2). the tax loss is treated as $29.1 GUIDELINES MANUAL November 1. the tax loss is treated as $2. Although the definition of tax loss corresponds to what is commonly called the "criminal figures. see Appendix A (Statutory Index).000 x 28% = $19.000 in false tax credits. and 7207. Application Notes: 1.800. 2009 Commentary Statutory Provisions: 26 U. In some instances. If none of the methods of determining the tax loss set forth fit the circumstances of the particular case. minus $2.000 of actual gross income minus $40. all conduct violating the tax laws should be considered as part of the same course of conduct or common – 318 – . In cases involving other types of taxes.000.000 of reported gross income = $70. the presumptions in the notes under subsections (c)(1) and (c)(2) do not apply. except in willful evasion of payment cases under 26 U. plus $10.000 ($90. the defendant claims $10.§2T1.C.600. the guidelines contemplate that the court will simply make a reasonable estimate based on the available facts. 2.C. Example 3: A defendant fails to file a tax return for a year in which his salary was $24.000 of actual gross income minus $60.C. § 7201 and willful failure to pay cases under 26 U. For additional statutory provision(s).S.S. 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.600 of tax withheld) unless sufficient information is available to make a more accurate assessment of the tax loss.600 ($130. 7206 (other than a violation based upon 26 U.000 when his income was actually $130.000.000 of gross income x 20% = $4.S. "Tax loss" is defined in subsection (c). § 7203. such as when indirect methods of proof are used.S.S. In these situations.000 of false tax credits) unless sufficient information is available to make a more accurate assessment of the tax loss. the tax loss is treated as $14.C. The tax loss does not include interest or penalties. the amount of the tax loss may be uncertain. § 6050I). Example 2: A defendant files a tax return reporting income of $60. §§ 7201.3(a)(2)).000 of reported gross income = $50. In determining the tax loss attributable to the offense.C.000 when his income was actually $90.000.000 x 28%) unless sufficient information is available to make a more accurate assessment of the tax loss.200 ($24. Under Note (A) to subsection (c)(1).600 in income tax was withheld by his employer. the court should use as many methods set forth in subsection (c) and this commentary as are necessary given the circumstances of the particular case. the 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 "presumptions" set forth are to be used unless the government or defense provides sufficient information for a more accurate assessment of the tax loss.

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

the number of purely probationary sentences will be reduced. so that the tax loss in such cases will tend to be substantially understated. amendment 343).1 effective November 1. 1989 (see Appendix C. or Pay Tax). and November 1. 1993 (see Appendix C. effective November 1. – 320 – . November 1. amendment 491). was deleted by consolidation with §2T1. 1993 (see Appendix C. November 1.000 in tax loss. §2T1. 1987. 1993 (see Appendix C. Historical Note: Effective November 1. amended effective November 1. According to estimates current at the time this guideline was originally developed (1987). 1991 (see Appendix C. while the other half received sentences that required them to serve an average prison term of twelve months. The adjustments in Chapter Three. amendment 343). 2009 Under pre-guidelines practice. §2T1. 1992 (see Appendix C. 1990 (see Appendix C. roughly half of all tax evaders were sentenced to probation without imprisonment. 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.1 GUIDELINES MANUAL November 1. § 994(i)(2). Guideline sentences should result in small increases in the average length of imprisonment for most tax cases that involve less than $100. amendment 468). amendment 646). amended effective November 1. 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. Failure to report criminally derived income is included as a factor for deterrence purposes. The guideline does not make a distinction for an employee who prepares fraudulent returns on behalf of his employer. 1987. amendment 491). November 1. Part B (Role in the Offense) should be used to make appropriate distinctions. 1989 (see Appendix C. 2002 (see Appendix C. [Deleted] Historical Note: Section 2T1. amendments 228-230). 1990 (see Appendix C. Amended effective November 1. As a result. 2001 (see Appendix C. amendment 343).2. effective November 1. income taxes are underpaid by approximately $90 billion annually. amendment 617). amendment 408). The increase is expected to be somewhat larger for cases involving more taxes.S. November 1.3. Criminally derived income is generally difficult to establish. November 1. 1990 (see Appendix C. amendments 224-227). Although tax offenses always involve some planning.2 (Willful Failure To File Return. [Deleted] Historical Note: Section 2T1. unusually sophisticated efforts to conceal the offense decrease the likelihood of detection and therefore warrant an additional sanction for deterrence purposes. November 1.1 effective November 1. Supply Information. 1987. amendment 426).3 (Fraud and False Statements Under Penalty of Perjury). This guideline is intended to reduce disparity in sentencing for tax offenses and to somewhat increase average sentence length. was deleted by consolidation with §2T1. 1998 (see Appendix C. November 1. November 1. and November 1. 1991 (see Appendix C. amendment 491). amendments 219-223). 1989 (see Appendix C.C. amendment 577).§2T1.

the misstatements in all such returns will contribute to one aggregate "tax loss. do not apply §3B1.November 1. resulting from the defendant’s aid. The second prong applies to persons who regularly prepare or assist in the preparation of tax returns for profit. or Advising Tax Fraud (a) Base Offense Level: (1) (2) Level from §2T4. e. For the general principles underlying the determination of tax loss. procurance or advice.3 (Abuse of Position of Trust or Use of Special Skill). In certain instances. or Other Documents)." Subsection (b)(1) has two prongs. if there is no tax loss. If the offense involved sophisticated means.—For purposes of subsection (b)(2). (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. (2) Commentary Statutory Provision: 26 U. through the use of fictitious entities.1 (Tax Evasion. Procuring. assistance. Fraudulent or False Returns. 3.C. Aiding. the defendant may advise other persons to violate their tax obligations through filing returns that find no support in the tax laws. increase to level 12. see §2T1. For purposes of this guideline. as defined in §2T1. or offshore financial accounts ordinarily indicates sophisticated means. § 6050I).. Application Notes: 1.S.S. If the resulting offense level is less than level 12. Sophisticated Means. 2009 GUIDELINES MANUAL §2T1. If an enhancement from this subsection applies. or Pay Tax. § 7206(2) (other than a violation based upon 26 U.C. The first prong applies to persons who derive a substantial portion of their income through the promotion of tax schemes. such as promotion of a tax shelter scheme.4. or 6.1 (Tax Table) corresponding to the tax loss. Willful Failure to File Return. Conduct such as hiding assets or transactions.1. Statements. through promoting fraudulent tax shelters. 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). "sophisticated means" means especially complex or especially intricate offense conduct pertaining to the execution or concealment of an offense. Supply Information. 2. – 321 – . or both. Counseling. increase by 2 levels.1(c) and Application Note 1 of the Commentary to §2T1.g. Assisting. or (B) the defendant was in the business of preparing or assisting in the preparation of tax returns. the "tax loss" is the tax loss. increase by 2 levels. corporate shells.4 §2T1.

Application Note: 1. 1990 (see Appendix C.1 effective November 1. Amended effective November 1. §2T1.1 (Tax Table) corresponding to the tax not collected or accounted for and paid over.1. apply §2B1. 1987.§2T1. amendment 577).1 (Theft.6. 2001 (see Appendix C. 1987. as must the failure to pay.S. 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. Subsection (b)(1) addresses such cases. §2T1. 1993 (see Appendix C. November 1. Cross Reference (1) Where the offense involved embezzlement by withholding tax from an employee’s earnings and willfully failing to account to the employee for it. Property Destruction. amendment 491). was deleted by consolidation with §2T1. and Fraud) if the resulting offense level is greater than that determined above.5 (Fraudulent Returns. Other considerations are similar to those in §2T1. [Deleted] Historical Note: Section 2T1. Where no effort is made to defraud the employee. (b) Commentary Statutory Provision: 26 U. 1989 (see Appendix C. – 322 – . Failing to Collect or Truthfully Account for and Pay Over Tax (a) Base Offense Level: Level from §2T4. amendment 409).4 GUIDELINES MANUAL November 1.5. amendment 617). Amended effective November 1. November 1. it is both tax evasion and a form of embezzlement. effective November 1. but also collected the tax from employees and did not account to them for it. and is treated as such in the guidelines. amendment 617). 1991 (see Appendix C. November 1. Historical Note: Effective November 1. November 1. 1987. or Other Documents). amendment 232). November 1.C. 2001 (see Appendix C. § 7202. 1993 (see Appendix C. the offense is a form of tax evasion. amendments 231 and 303). November 1. The failure to collect or truthfully account for the tax must be willful. amendment 343). Statements. Background: The offense is a felony that is infrequently prosecuted. 1998 (see Appendix C. 1989 (see Appendix C. amendment 491). Historical Note: Effective November 1. In the event that the employer not only failed to account to the Internal Revenue Service and pay over the tax.

Historical Note: Effective November 1.C. 2009 GUIDELINES MANUAL §2T1. §§ 7215. §2T1.1 (Tax Table) corresponding to the amount not deposited.8 §2T1. Offenses Relating to Withholding Statements (a) Base Offense Level: 4 Commentary Statutory Provisions: 26 U.S. 2004 (see Appendix C. Application Notes: 1. – 323 – . although some effort has been made to tie the offense level to the level of taxes that were not deposited. If funds are deposited and withdrawn without being paid to the Internal Revenue Service. rather than merely delay. If the defendant was attempting to evade. Historical Note: Effective November 1. The more serious offense is 26 U. nor even that taxes have not been paid. This offense should be relatively easy to detect and fines may be feasible. an upward departure may be warranted.S. 7512(b). imprisonment was unusual.November 1. It is recommended that the fine be based on the total amount of funds not deposited. Accordingly. or 5 less than the level from §2T4. Failing to Deposit Collected Taxes in Trust Account as Required After Notice (a) Base Offense Level (Apply the greater): (1) (2) 4. §§ 7204. payment of taxes.8. amendment 674). 2. Background: The offenses are misdemeanors.S.7. Amended effective November 1. § 7202 (see §2T1. Application Note: 1. Commentary Statutory Provisions: 26 U. 1987.6). 7205.C. they should be treated as never having been deposited. the offense level has been set considerably lower than for tax evasion.C. Under pre-guidelines practice. Background: This offense is a misdemeanor that does not require any intent to evade taxes. 1987.

247 F.4 (whichever guideline most closely addresses the harm that would have resulted had the conspirators succeeded in impeding.9(a)(1) or (2). 2009 Conspiracy to Impede. denied. .1 or §2T1. computation. to violate the tax laws (e. Impair. – 324 – 2. Otherwise.9. . or an offense involving the marketing of fraudulent tax shelters or schemes). computation.9(b) are to be applied to the base offense level determined under §2T1. impairing. 355 U. The base offense level is the offense level (base offense level plus any applicable specific offense characteristics) from §2T1. . This section applies to conspiracies to "defraud the United States by impeding. § 371. the collection of revenue. increase by 4 levels. 4. as appropriate. 924 (1958).S. or 10. impairing. obstructing and defeating . 723 F. the base offense level is 10. Klein." United States v. increase by 2 levels. Browning.2d 1017.§2T1. an offense involving a "tax protest" group that encourages persons to violate the tax laws. who merely evade taxes jointly or file a fraudulent return. such as a husband and wife. It does not apply to taxpayers. obstruct. 464 U. other than the participants directly involved in the offense.S. or collection of revenue. 1038 (1984). 3. 915 (2d Cir.C.S. assessment. (2) Commentary Statutory Provision: 18 U. Specific Offense Characteristics If more than one applies. assessment. or collection of revenue. Do not. Specific offense characteristics from §2T1.2d 908. impair.g. or defeat the ascertainment. 1983). denied. cert. Application Notes: 1. 1984). cert. or defeating the Internal Revenue Service) if that offense level is greater than 10. Subsection (b)(2) provides an enhancement where the conduct was intended to encourage persons. If the conduct was intended to encourage persons other than or in addition to co-conspirators to violate the internal revenue laws or impede. or defeat the ascertainment. GUIDELINES MANUAL November 1.2d 1544 (11th Cir. use the greater: (1) If the offense involved the planned or threatened use of violence to impede.1 or §2T1. Carruth. or Defeat Tax (a) Base Offense Level (Apply the greater): (1) (2) (b) Offense level determined from §2T1. Obstruct. obstruct. impair. 1957). apply this adjustment if an adjustment from §2T1. obstructing.4.. 699 F.4(b)(1) is applied. 1021 (9th Cir. See also United States v. United States v. however.9 §2T1.

For purposes of this guideline. * * * * * 2.1 (Tax Table) corresponding to the tax loss. the "tax loss" is the amount of taxes that the taxpayer failed to pay or attempted not to pay. §§ 5601-5605. chiefly 26 U. 5762.November 1. It also typically is complex and may be far-reaching. Application Notes: 1. amendment 491). Amended effective November 1. no effort has been made to provide a section-by-section set of guidelines. §§ 5601-5605. – 325 – . 5607. §2T2. 1987. 5671. The tax loss is the total amount of unpaid taxes that were due on the alcohol and/or tobacco. 5691. 1989 (see Appendix C. For additional statutory provision(s). see Appendix A (Statutory Index). 1993 (see Appendix C.C. 1987. Because these offenses are no longer a major enforcement priority. 5608. where the essence of the conduct is tax evasion or a regulatory violation. or that the defendant was attempting to evade.C. 5608. Historical Note: Effective November 1.S. provided the conduct constitutes non-payment. Non-Payment of Taxes (a) Base Offense Level: Level from §2T4. 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. ALCOHOL AND TOBACCO TAXES Introductory Commentary This section deals with offenses contained in Parts I-IV of Subchapter J of Title 26. 2009 GUIDELINES MANUAL §2T2. 5661. November 1.1. amendments 233 and 234). Rather. Historical Note: Effective November 1. the conduct is dealt with by dividing offenses into two broad categories: tax evasion offenses and regulatory offenses. Commentary Statutory Provisions: 26 U.1 Background: This type of conspiracy generally involves substantial sums of money.S. 5691. evasion or attempted evasion of taxes. 5607. and 5762. 5671. 5661. making it quite difficult to evaluate the extent of the revenue loss caused.

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

For additional statutory provision(s). such as the increase in market value due to importation. Application Notes: 1. . If the resulting offense level is less than level 12. 550. or restricted.1.S.S. or 4. 2009 GUIDELINES MANUAL §2T3. 548. or 5. if the tax loss exceeded $1. an upward departure may be warranted. 1436. Such conduct generally poses a lesser threat to revenue collection. see Appendix A (Statutory Index). if the tax loss did not exceed $100. Particular attention should be given to those items for which entry is prohibited. Commentary Statutory Provisions: 18 U. Especially when such items are harmful or protective quotas are in effect. 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. Sophisticated Means.1 (Tax Table) corresponding to the tax loss.1 §2T3.000. A sentence based upon an alternative measure of the "duty" evaded. Evading Import Duties or Restrictions (Smuggling). (2) (3) For purposes of this guideline. 1465. increase by 2 levels. might be considered. §§ 283. In such instances.C. 1464.November 1.000. the duties evaded on such items may not adequately reflect the harm to society or protected industries resulting from their importation. 3. §§ 496. (c) Cross Reference (1) If the offense involves a contraband item covered by another offense guideline. increase to level 12. 1708(b). apply that offense guideline if the resulting offense level is greater than that determined above. 541-545. the "tax loss" is the amount of the duty. 551. "sophisticated means" means especially complex or especially intricate offense conduct pertaining to the execution or – 327 – 2. 19 U.—For purposes of subsection (b)(1). 1915. if the tax loss exceeded $100 but did not exceed $1. limited. or 25 percent of the items’ fair market value in the United States if the increase in market value due to importation is not readily ascertainable. 3907. Receiving or Trafficking in Smuggled Property (a) Base Offense Level: (1) The level from §2T4.C. 1586(e). 547. (b) Specific Offense Characteristic (1) If the offense involved sophisticated means.

1987. 1992 (see Appendix C.2. 1989 (see Appendix C.000 More than $400.000. through the use of fictitious entities.000.000 More than $100.000 More than $80. amendment 617). or both. amendment 685). November 1. Amended effective November 1.000 More than $2.000.2 (Receiving or Trafficking in Smuggled Property). * * * * * 4.000 More than $12.000 Offense Level 6 8 10 12 14 16 18 20 22 24 26 28 30 32 34 36. amended effective November 1. amendment 647). effective November 1. 2001 (see Appendix C.000 More than $400. Historical Note: Effective November 1.000. 1992 (see Appendix C.000. 653).000 More than $50.1. November 1. amendment 453). 1989 (see Appendix C. amendment 410).1 effective November 1. 2003 (see Appendix C.000.000 More than $7.000.§2T3. 1989 (see Appendix C. [Deleted] Historical Note: Section 2T3. amendment 491). amendment 577). 1987. Historical Note: Effective November 1.1 GUIDELINES MANUAL November 1. January 25. 1991 (see Appendix C.000 or less More than $2.000 More than $200. amendment 617). corporate shells. Amended effective November 1. TAX TABLE §2T4. amendment 410).000 More than $1. 1991 (see Appendix C. Tax Table Tax Loss (Apply the Greatest) (A) (B) (C) (D) (E) (F) (G) (H) (I) (J) (K) (L) (M) (N) (O) (P) $2. – 328 – . §2T3. Conduct such as hiding assets or transactions. November 1. November 1. 2003 (see Appendix C. 1993 (see Appendix C. amendment 236) and November 1. 1987. 2001 (see Appendix C.500 More than $30.000 More than $5. November 1. amendment 237). November 1.500. 1998 (see Appendix C.000 More than $200. or offshore financial accounts ordinarily indicates sophisticated means. amendment 235). 2006 (see Appendix C. November 1. was deleted by consolidation with §2T3. 2009 concealment of an offense.000 More than $20. November 1. amendment 453).

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

§§ 371. 2A3. 2282A. §§2D1.13.S.S.12.2. 2D1.1. 2D1.4.3. a federal crime of terrorism as defined in 18 U.C.1. – 330 – . 49 U. 18 U. 2D1. § 2332a. Application Notes: 1.C. 2D3. and 18 U.2.S. 18 U. 2D1.1. 2D1. 2D1. §2M6.6. § 46504. § 1362. §2Q1. 49 U. Commentary Statutory Provisions: 18 U. § 2332b(g)(5): 18 U.C. (a)(9).C. 2D1. For additional statutory provision(s).C. 2D1. 2D1. § 2340A.2.12.9. § 1992(a)(1)-(a)(7). 2D2. 18 U. 2D2. 2D1. 2A3.S.§2X1.6. 2D3. 18 U. 2D1. 2D1. see Appendix A (Statutory Index). 18 U.C.5.C. 2D3. § 46505.11.S. Offense guidelines that expressly cover conspiracies include: §2A1.C.1.S. 2D1.C.S. §§2D1. § 81.2. § 930(c). § 60123(b). Offense guidelines that expressly cover attempts include: §§2A2. §2N1. 2D1. and solicitations are expressly covered by other offense guidelines. or was intended to promote.1.C. if such offense involved.1.4.2. §§2C1.1.10.1.C.1. 372.1.7. 2D1.2.10.S.C.11. 2D1.2. 2A3.7. §2E5. 2D1.1. 2282B. 18 U.S. Certain attempts. 2A3.1 (A) GUIDELINES MANUAL November 1.C. 2D3. § 32.8. 2D1. 2009 Any of the following offenses.5.S. 2A4.S.9. 2C1.S. § 1363.13. 2D2.5.1. 2D2.C. (B) Any of the following offenses: 18 U.1. (a)(10). conspiracies. and 49 U.2. 2271. 2D1. 2A5.S.S. § 2339A.8.2. 2D1.

the substantive offense was substantially completed or was interrupted or prevented on the verge of completion by the intercession of law enforcement authorities or the victim.1.1. with the enhancement for possession of a weapon. the offense level ordinarily would not include aggravating factors regarding possible injury to others. 2C1. means the offense that the defendant was convicted of soliciting. In certain cases. But the only specific offense characteristics from the guideline for the substantive offense that apply are those that are determined to have been specifically intended or actually occurred. the offense level 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. Background: In most prosecutions for conspiracies or attempts. For example. because such factors would be speculative.000.1(a). where the intended offense was the theft of $800. The offense level would simply reflect the level applicable to robbery of a financial institution. In the case of multiple counts that are not closely related counts.000 minus 3 levels. §2T1. or the offense level for the theft of $30. whichever is greater. the specific offense characteristic for physical restraint would be added.1. or obtaining a large sum of money. see §2X5. 2. no reduction of the offense level is warranted. §2E5.1 (Other Offenses). If the substantive offense is not covered by a specific guideline.000 but the participants completed (or were about to complete) only the acts necessary to steal $30. if two defendants are arrested during the conspiratorial stage of planning an armed bank robbery. however.1 §2H1. the offense level is the offense level for the theft of $800. §2M6. – 331 – . In such cases. the arrest occurs well before the defendant or any co- 3.000.9. 4. the value of the items that the defendant attempted to steal would be considered. hostage taking. (b)(2). (b)(2).1. whether the 3-level reduction under §2X1. Offense guidelines that expressly cover solicitations include: §2A1.November 1.1(b)(1). discharge of a weapon. For example.1(b)(1). the participants may have completed (or have been about to complete but for apprehension or interruption) all of the acts necessary for the successful completion of part. the base offense level will be the same as that for the substantive offense. In such cases.5. "Substantive offense." as used in this guideline. of the intended offense. 2009 GUIDELINES MANUAL §2X1. or (b)(3)(A) applies is determined separately for each count. 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). §§2C1. but not all. or conspiring to commit. Under §2X1. attempting. Sometimes. Speculative specific offense characteristics will not be applied. or (b)(3)(A)). If it was established that the defendants actually intended to physically restrain the teller.2. In an attempted theft.

amendment 637).—For purposes of this guideline.S.1. Historical Note: Effective November 1. November 1. 1991 (see Appendix C. Aiding and Abetting The offense level is the same level as that for the underlying offense. 2004 (see Appendix C. § 2339A or § 2339C(a)(1)(A).S.2) may be applicable. 1989 (see Appendix C. 18 U.1 GUIDELINES MANUAL November 1.C. or in the case of a violation of 18 U. Under such circumstances. November 1. 2002 (see Appendix C. 1988 (see Appendix C. November 1. 2339C(a)(1)(A). amendment 655). Amended effective November 1. ACCESSORY AFTER THE FACT Accessory After the Fact (a) Base Offense Level: §2X3. amendment 633). 1987. 1990 (see Appendix C. November 1. 2339. amendment 669). 2002 (see Appendix C. 1993 (see Appendix C.1(b)(1) or (2). amendment 700). a reduction of 3 levels is provided under §2X1. amendment 359). 2001 (see Appendix C. November 1. – 332 – . § 2. Definition.C. amendments 311 and 327). 2339A. 2003 (see Appendix C. 1987."underlying offense" means the offense the defendant is convicted of aiding or abetting. amendment 637). 2284.1. amendment 411). Commentary Statutory Provisions: 18 U. November 1. 1992 (see Appendix C. amendments 238-242). This section provides that aiding and abetting the commission of an offense has the same offense level as the underlying offense. amendments 699 and 700). 2007 (see Appendix C. AIDING AND ABETTING §2X2. 2007 (see Appendix C. November 1. * * * * * 3. 2009 conspirator has completed the acts necessary for the substantive offense. November 1. November 1. amendment 42). Background: A defendant convicted of aiding and abetting is punishable as a principal. Application Note: 1. An adjustment for a mitigating role (§3B1.C. amendments 444 and 447). November 1. Historical Note: Effective November 1. §§ 2. November 1. * * * * * 2. "underlying offense" means the offense the defendant is convicted of having materially supported or provided or collected funds for. 1990 (see Appendix C. Amended effective January 15.S. November 1.§2X1. amendment 496). prior to or during its commission.

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

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

C. if so. Part H (Specific Offender Characteristics).— (A) In General. For example.1 (Criminal Sexual Abuse.1 (Restitution). Chapter Six. §5D1.2 (Class A Misdemeanors (Not Covered by Another Specific Offense Guideline)). §5E1.3 (Conditions of Supervised Release).3 (Imposition of a Sentence on a Defendant Subject to an Undischarged Term of Imprisonment).S. especially assimilative crimes. 2.2 (Term of Supervised Release).e. § 1841(a)(1).S.S. §5D1. the conduct of which the defendant is convicted that violates a specific provision listed in 18 U. § 1841(a)(1). In General.—If the defendant is convicted 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. Attempt to Commit Criminal Sexual Abuse). 2009 GUIDELINES MANUAL §2X5. Part K (Departures). § 1841(a)(1). Upward Departure Provision. § 1841(a)(1). apply §2X5. the specific guidelines that have been promulgated cover the type of criminal behavior that most such offenses proscribe.S.—This guideline applies only to felony offenses not referenced in Appendix A (Statutory Index). Chapter Five. the provisions of 18 U. Nonetheless. §5G1. §5E1. Chapter Five. In a case in which there is no sufficiently analogous guideline. §5D1. (B) 3.C.S. Chapter Five.C. an upward departure may be warranted if the offense level under the applicable guideline does not adequately account for the death of. a child in utero at the time of the offense of conviction. Part A (Sentencing Procedures). the child in utero.S. §5E1. to apply the guideline that is most analogous.S.C.. or bodily injury to. Application of §2X5. if the defendant committed aggravated sexual abuse against the unborn child’s mother and it caused the death of the child in utero. The court is required to determine if there is a sufficiently analogous offense guideline.1 Commentary Statutory Provision: 18 U. § 3553 control. the applicable Chapter Two guideline would be §2A3. Background: Many offenses.C.—For offenses under 18 U. § 1841(b) and that results in the death of. Chapter Five. For Class A misdemeanor offenses that have not been referenced in Appendix A.November 1. The sentencing guidelines apply to convictions under 18 U. Part J (Relief from Disability). Convictions under 18 U. are not listed in the Statutory Index or in any of the lists of Statutory Provisions that follow each offense guideline.1 (Imposition of a Term of Supervised Release).—Guidelines and policy statements that can be applied meaningfully in the absence of a Chapter Two offense guideline include: §5B1. § 13 (Assimilative Crimes Act) – 335 – .C. Chapter Six. i.C. or serious bodily injury to. and.4 (Forfeiture). Part F (Sentencing Options). Part B (Plea Agreements).3 (Conditions of Probation). Application Notes: 1.3 (Special Assessments).2.

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

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

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

religion. amendment 344). (b) (2) (c) Special Instruction (1) Subsection (a) shall not apply if an adjustment from §2H1. 1990 (see Appendix C.1(b)(1) applies. in the case of a plea of guilty or nolo contendere. 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.3 – 339 – . In such cases. this factor is taken into account by the offense level of the Chapter Two offense guideline. disability. color. Amended effective November 1. 2009 GUIDELINES MANUAL §3A1. Do not apply subsection (a) on the basis of gender in the case of a sexual offense. §3A1. and (B) the offense involved a large number of vulnerable victims. increase by 3 levels. Historical Note: Effective November 1. gender. 2. Subsection (a) applies to offenses that are hate crimes. (1) If the defendant knew or should have known that a victim of the offense was a vulnerable victim. Commentary Application Notes: 1.1. "vulnerable victim" means a person (A) who is a victim of the offense of conviction and any conduct for which the defendant is accountable under §1B1. Note that special evidentiary requirements govern the application of this subsection. do not apply subsection (a) if an adjustment from §2H1.VICTIM-RELATED ADJUSTMENTS Introductory Commentary The following adjustments are included in this Part because they may apply to a wide variety of offenses. increase the offense level determined under subdivision (1) by 2 additional levels. For purposes of subsection (b). national origin. increase by 2 levels.1(b)(1) applies. Hate Crime Motivation or Vulnerable Victim (a) If the finder of fact at trial or. If (A) subdivision (1) applies.1 CHAPTER THREE . 1987. or sexual orientation of any person. Moreover.ADJUSTMENTS PART A .November 1. ethnicity.

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

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

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

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

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

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

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

2 Commentary Application Notes: 1.1 (Unlawful Possession. Applicability of Adjustment. (B) Conviction of Significantly Less Serious Offense.— (A) Substantially Less Culpable than Average Participant.—For purposes of this guideline. or Trafficking (Including Possession with Intent to Commit These Offenses).—The determination whether to apply subsection (a) or subsection (b). in weighing the totality of the circumstances. 2. whose role in that offense was limited to transporting or storing drugs and who is accountable under §1B1. Accordingly. 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.1 (Unlawful Manufacturing. a defendant who is convicted of a drug trafficking offense. Definition. 3. See the Introductory Commentary to this Part (Role in the Offense).—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.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. Fact-Based Determination.1 (Aggravating Role). 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. A defendant who is accountable under §1B1. 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. Importing. that such a role adjustment is warranted. For example.—This guideline is not applicable unless more than one participant was involved in the offense. Attempt or Conspiracy)) is convicted of simple possession of cocaine (an offense having a Chapter Two offense level of level 6 under §2D2. 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. 2009 GUIDELINES MANUAL §3B1.November 1. Attempt or Conspiracy)). (C) – 347 – . Exporting. the court.—This section provides a range of adjustments for a defendant who plays a part in committing the offense that makes him substantially less culpable than the average participant. As with any other factual issue. or an intermediate adjustment. based solely on the defendant’s bare assertion. involves a determination that is heavily dependent upon the facts of the particular case. is not required to find. Requirement of Multiple Participants. "participant" has the meaning given that term in Application Note 1 of §3B1. For example.

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

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

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. Do not apply this adjustment if the Chapter Two offense guideline incorporates this factor. or the defendant used body armor during the commission of the offense. Historical Note: Effective November 1. or soliciting. was deleted effective November 1. they do not. 2. November 1. an upward departure may be warranted. 1989 (see Appendix C. November 1. 1987. procuring. If the defendant used or attempted to use more than one person less than eighteen years of age. 1987. Such persons generally are viewed as more culpable. increase by 2 levels. Amended effective November 1. training. Amended effective November 1. 3. encouraging.5. 2005 (see Appendix C. 1993 (see Appendix C. §3B1. November 1. amendment 527). A former §3B1. effective November 1. Historical Note: Effective November 1. in preparation for the offense. November 1. amendment 617). 1995 (see Appendix C. intimidating. or apprehension for. amendment 580). (2) – 350 – . 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. 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. "Used or attempted to use" includes directing. November 1.4 (untitled). and (apply the greater)— (A) (B) the offense involved the use of body armor. or in an attempt to avoid apprehension for the offense. 1998 (see Appendix C. recruiting. amendment 492). amended effective November 1. increase by 4 levels.4.§3B1. 1995 (see Appendix C. 2009 (see Appendix C. counseling. §3B1. 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. amendment 540). amendment 527). Commentary Application Notes: 1. amendment 677). in fact. 2001 (see Appendix C. amendment 726). amendment 303). 1996 (see Appendix C. commanding. amendment 346).3 GUIDELINES MANUAL November 1. increase by 2 levels. the offense. 1990 (see Appendix C.

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

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

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

prosecution. fact.—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. this adjustment will apply and increase the offense level for the underlying offense (i. this adjustment is not to be applied to the offense level for that offense except if a significant further obstruction occurred during the investigation. §2J1. avoiding or fleeing from arrest (see. 8. as used in this section.e.. if the defendant threatened a witness during the course of the prosecution for the obstruction offense). (b) (c) (d) (e) 6. although such conduct may be a factor in determining whether to reduce the defendant’s sentence under §3E1. not under oath.g. Examples of Conduct Ordinarily Not Covered. §2J1...S. or information that. § 3146 (Penalty for failure to appear).1 GUIDELINES MANUAL November 1. or sentencing of the obstruction offense itself (e. However. unless Application Note 4(g) above applies. the offense with respect to which the obstructive conduct occurred).1 (Contempt). See Application Note 8. §2J1. §3C1. statement. if believed. Bribery of Witness). or §2X4. below. however.9 (Payment to Witness). The following is a non-exhaustive list of examples of the types of conduct to which this application note applies: (a) providing a false name or identification document at arrest.1 (Acceptance of Responsibility)). if the defendant is convicted of a separate count for such conduct. in respect to a presentence investigation. §2X3. not amounting to a material falsehood.. would tend to influence or affect the issue under determination. or information.3 (Perjury or Subornation of Perjury.—If the defendant is convicted both of an obstruction offense (e. fact.g. making false statements. §2J1. or sentencing of the instant offense where there is a separate count of conviction for such conduct. means evidence. to law enforcement officers. §2J1. Inapplicability of Adjustment in Certain Circumstances. §3E1.6 (Failure to Appear by Defendant).2 (Obstruction of Justice).—If the defendant is convicted of an offense covered by §2J1. except where such conduct actually resulted in a significant hindrance to the investigation or prosecution of the instant offense.1 (Misprision of Felony). Grouping Under §3D1. 2009 This adjustment also applies to any other obstructive conduct in respect to the official investigation.1 (Accessory After the Fact). providing incomplete or misleading information.2(c). statement. "Material" Evidence Defined. 18 U.1 (Acceptance of Responsibility). § 1621 (Perjury generally)) and 7.5 (Failure to Appear by Material Witness).C. prosecution. 5. lying to a probation or pretrial services officer about defendant’s drug use while on pretrial release. 18 U.S. – 354 – .—"Material" evidence.g.C.§3C1.2 (Reckless Endangerment During Flight)).

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

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

2006 (see Appendix C. Commentary Background: This adjustment implements the directive to the Commission in section 204(b) of Pub. 2009 GUIDELINES MANUAL §3C1. amendment 689). amendment 724). Historical Note: Effective November 1. § 3559(g)(1) applies. False Registration of Domain Name If a statutory enhancement under 18 U. – 357 – . L.S.C.4 §3C1. Amended effective November 1. increase by 2 levels. 108–482.4. 2008 (see Appendix C.November 1.

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

and (B) requires that such term of imprisonment be imposed to run consecutively to any other term of imprisonment.2(a)..4. 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. independent instances of assault or robbery).g. drug trafficking. and use only the offense level for the most serious offense in that group. 1987. Amended effective November 1.2. Procedure for Determining Offense Level on Multiple Counts (a) When a defendant has been convicted of more than one count. Determine the offense level applicable to each Group by applying the rules specified in §3D1. or otherwise contain provisions dealing with repetitive or ongoing misconduct (e..S.C. (2) Commentary Application Notes: 1. amendment 121). Sentences for such counts are governed by the provisions of §5G1. Any count of conviction under 18 U. many environmental offenses).1. 1989 (see Appendix C.—For purposes of sentencing multiple counts of conviction. counts can be (A) contained in the same indictment or information.3. including any specific offense characteristics for the conduct taken as a whole. 2007 (see Appendix C. amendment 707).. 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. (2) When offenses are closely interrelated. § 1028A.November 1.1 involved (e. (3) As to other offenses (e. In General.2 (Sentencing on Multiple Counts of Conviction) for guidance on how sentences for multiple counts of conviction under 18 U. add the numerical quantities and apply the pertinent offense guideline. See Application Note 2(B) of the Commentary to §5G1.2-3D1.5 the following: (1) Any count for which the statute (A) specifies a term of imprisonment to be imposed. fraud. – 359 – . Historical Note: Effective November 1. 2009 GUIDELINES MANUAL §3D1. November 1.C. Determine the combined offense level applicable to all Groups taken together by applying the rules specified in §3D1. firearms dealing). theft. (2) (3) (b) Exclude from the application of §§3D1. § 1028A should be imposed.g. §3D1.g. group them together for purposes of the multiple-count rules.S. or (B) contained in different indictments or informations for which sentences are to be imposed at the same time or in a consolidated proceeding.

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

1.November 1. 2E5. §2C1. §§2B1.1.5. For multiple counts of offenses that are not listed. 2D1.1. §§2C1.9. §§2B2.2.5.1.1.2.5.2. 2T2.5). 2B5.2. 2B5. 2B2. §§2L1.3. §§2D1. 2M3. 2B1.3. 2B6. §2Q2. 2M2. Offenses covered by the following guidelines are to be grouped under this subsection: §2A3.1.1.1.13.1. §§2P1. 2P1. 2B1.2.1.8.1.1.1. §2R1. §§2L2. §2X6. 2B3. 2B4.2. 2G3. the guideline applicable to another of the counts. §§2T1.4.1. 2L2.2.1. §§2M2.1. 2H2.5. Exclusion of an offense from grouping under this subsection does not necessarily preclude grouping under another subsection.1.3. or other adjustment to. §2K2. Specifically excluded from the operation of this subsection are: all offenses in Chapter Two. §§2E4. 2D1.5. §§2D2. 2P1. or if the offense behavior is ongoing or continuous in nature and the offense guideline is written to cover such behavior. grouping under this subsection may or may not be appropriate.1. 2M3. 2T3. 2H4. 2T1. §§2S1. 2S1. 2T1.2 (c) When one of the counts embodies conduct that is treated as a specific offense characteristic in.6.4. When the offense level is determined largely on the basis of the total amount of harm or loss. 2L2. Part A (except §2A3. §§2H1.1.1.3.1. 2D1.3.9. §§2E1. 2T1.1.1. 2M3.1. 2T1. 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.4.3. 2M3. 2D2.2. 2M3.1. 2G2.3. §2N3.1. 2D1. 2C1.1. 2B3.5. or some other measure of aggregate harm. 2009 GUIDELINES MANUAL §3D1. §§2G2.3.1. 2C1.3. §§2G1.4. (d) – 361 – .7. 2M3. 2B3. 2D2. the quantity of a substance involved. 2E2.1.1.11.1. 2E1.1.

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

the counts will be grouped together under subsection (b). (2) The defendant is convicted of two counts of mail fraud and one count of wire fraud. at least with respect to specific offense characteristics. (3) The defendant is convicted of one count of auto theft and one count of altering the vehicle identification number of the car he stole. each in furtherance of a single fraudulent scheme. The counts are to be grouped together. each of which could be treated as an aggravating factor to another more serious count. 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. this provision will overlap subsection (a). 2009 GUIDELINES MANUAL §3D1. bodily injury or obstruction of justice.. The bodily injury (the harm from the assault) would not be a specific offense characteristic to the robbery and would represent a different harm. It is not. In addition.2 grouped together. 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. Frequently. e. On the other hand. The counts are to be grouped together.. this rule applies only if the offenses are closely related. not one composite harm). if in a robbery of a credit union on a military base the defendant is also convicted of assaulting two employees. However. separate instances of fear and risk of harm. The counts are to be grouped together. also part of the common scheme or plan. the count represented by that conduct is to be grouped with the count to which it constitutes an aggravating factor. each involving 10 grams of cocaine. for example. 5.3(a)(2). which represents a Chapter Three adjustment and involves a different harm or societal interest than the underlying offense. Of course. The counts are not to be grouped together. a finding is made that there are two other sales. is also a specific offense characteristic in or other adjustment to another count. In such cases. is covered by subsection (c) even though it is not covered by subsection (a). robbery of the same victim on different occasions involves multiple. one of whom is injured seriously. a count such as obstruction of justice. 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.November 1. Sometimes there may be several counts. (4) The defendant is convicted of two counts of distributing a controlled substance. even if the mailings and telephone call occurred on different days. even if they constitute legally distinct offenses occurring at different times. Subsection (c) provides that when conduct that represents a separate count. This provision prevents "double counting" of offense behavior.g. the assault with serious bodily injury would be – 363 – . But: (5) The defendant is convicted of two counts of rape for raping the same person on different days. The two counts will then be grouped together under either this subsection or subsection (d) to avoid double counting. 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.g. For example. The total amount of all four sales (40 grams of cocaine) will be used to determine the offense level for each count under §1B1. only the count representing the most serious of those factors is to be grouped with the other count. 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 count involving a separate sale of 10 grams of cocaine that is part of a common scheme or plan.

All three counts are to be grouped together. if the defendant were convicted of one count of securities fraud and one count of bribing a public official to facilitate the fraud. Under the latter circumstances. however. (8) The defendant is convicted on two counts of check forgery and one count of uttering the first of the forged checks. so that the monetary amount of that check counts only once when the rule – 364 – . the offense guideline that results in the highest offense level is used. and one count of selling cocaine. the bribe was given for the purpose of hampering a criminal investigation into the offense. The "same general type" of offense is to be construed broadly. Although the counts arise from various schemes. It provides that most property crimes (except robbery. (5) The defendant is convicted of one count of selling heroin. All fifteen counts are to be grouped together. the two counts would not be grouped together by virtue of the cross reference. however. one count of selling PCP.3(b). or solicitation is covered under subsection (d).1 provides rules for combining (adding) quantities of different drugs to determine a single combined offense level. All five counts are to be grouped together. Counts involving offenses to which different offense guidelines apply are grouped together under subsection (d) if the offenses are of the same general type and otherwise meet the criteria for grouping under this subsection. A conspiracy. the guideline for bribery of a public official contains a cross reference to the guideline for a conspiracy to commit the offense that the bribe was to facilitate. see §3D1. For example. All three counts are to be grouped together. Note. If. (3) The defendant is convicted of five counts of mail fraud and ten counts of wire fraud. A cross reference to another offense guideline does not constitute "a specific offense characteristic . drug offenses. that certain guidelines are specifically excluded from the operation of subsection (d). Note. The counts are to be grouped together. that the uttering count is first grouped with the first forgery count under subsection (a) of this guideline. however. burglary. The five counts are to be grouped together. Subsection (d) likely will be used with the greatest frequency. (6) The defendant is convicted of three counts of tax evasion. 6.1 would result in a 2-level enhancement to the offense level for the fraud. while the remaining assault conviction would be treated separately. attempt. firearms offenses. The counts are to be grouped together. In such cases. extortion and the like). Examples: (1) The defendant is convicted of five counts of embezzling money from a bank.. attempt.§3D1. or other adjustment" within the meaning of subsection (c). (2) The defendant is convicted of two counts of theft of social security checks and three counts of theft from the mail. (4) The defendant is convicted of three counts of unlicensed dealing in firearms. the counts would be grouped together. 2009 grouped with the robbery count. it would constitute obstruction and under §3C1.2 GUIDELINES MANUAL November 1. The counts are to be grouped together. or solicitation to commit an offense is covered under subsection (d) if the offense that is the object of the conspiracy. (7) The defendant is convicted of three counts of discharging toxic substances from a single facility. each involves a monetary objective.. The Commentary to §2D1. The list of instances in which this subsection should be applied is not exhaustive. Nonetheless. each from a different victim. and other crimes where the guidelines are based primarily on quantity or contemplate continuing behavior are to be grouped together.

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

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

Count as one-half Unit any Group that is 5 to 8 levels less serious than the Group with the highest offense level.4 characteristics that require increasing the offense level to a certain minimum may affect the outcome. Summary examples of the application of these rules are provided at the end of the Commentary to this Part. Historical Note: Effective November 1. Sometimes the rule specified in this section may not result in incremental punishment for additional criminal acts because of the grouping rules.3 3 1/2 . The robbery. and robbery. however. will not. 2004 (see Appendix C. Such Groups will not increase the applicable offense level – 367 – (b) (c) . which is fairly wide. November 1. all against the same victim on a single occasion. However. if the defendant commits forcible criminal sexual abuse (rape). 4. In determining the number of Units for purposes of this section: (a) Count as one Unit the Group with the highest offense level. Disregard any Group that is 9 or more levels less serious than the Group with the highest offense level. 2001 (see Appendix C. 1987. an exceptionally large property loss in the course of the rape would provide grounds for an upward departure. 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 . See §5K2. The additional factor of property loss ordinarily can be taken into account adequately within the guideline range for rape. all of the counts are grouped together under §3D1. that data showed to be significant in actual practice. §3D1. aggravated assault.November 1.4.2.5 (Property Damage or Loss). Background: This section provides rules for determining the offense level associated with each Group of Closely Related Counts. November 1. Count one additional Unit for each Group that is equally serious or from 1 to 4 levels less serious. amendment 617). This is because the offense guideline for rape (§2A3. including injury.1) includes the most common aggravating factors. The aggravated assault will increase the guideline range for the rape. 1989 (see Appendix C. amendments 257 and 303). For example. 2009 GUIDELINES MANUAL §3D1.5 More than 5 Increase in Offense Level none add 1 level add 2 levels add 3 levels add 4 levels add 5 levels. Amended effective November 1. amendment 674).

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

Determining the Total Punishment Use the combined offense level to determine the appropriate sentence in accordance with the provisions of Chapter Five. The combined offense level is 31. The combined offense level is 28 pursuant to §3D1. and the offense level for the most serious (28) is therefore increased by 3 levels under the table. The examples are discussed summarily. Part B (Career Offenders and Criminal Livelihood). In each of the first three robberies.000 was taken and a firearm was displayed. step-by-step approach is recommended until the user is thoroughly familiar with the guidelines.1 (Unlawful Manufacturing. In addition.November 1.3(a).4.1. 2009 GUIDELINES MANUAL §3D1. Part E (Acceptance of Responsibility) and Chapter Four. Historical Note: Effective November 1. a more thorough. §3D1. 1. drawn from presentence reports in the Commission’s files. because of the attempted bribe of the DEA agent. or Trafficking)). 1987. In the fourth robbery $12. and the third count translates into 75 kilograms of marihuana.5. 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.1.2(c).2. the offense level was 22 (20 plus a 2-level increase because a financial institution was robbed) (§2B3. each of the first three represents one-half unit for purposes of §3D1. As the first three counts are 6 levels lower than the fourth. (2) distribution of 150 grams of cocaine. Each would represent a distinct Group. The first count translates into 46 kilograms of marihuana. The combined offense level is subject to adjustments from Chapter Three. (3) distribution of 75 grams of heroin. The combined offense level for drug offenses is determined by the total quantity of drugs. Defendant A was convicted on four counts. Because the conduct constituting the bribery offense is accounted for by §3C1. converted to marihuana equivalents (using the Drug Equivalency Tables in the Commentary to §2D1. the second count translates into 30 kilograms of marihuana. (4) offering a DEA agent $20. illustrate the operation of the guidelines for multiple counts.1(b)). – 369 – 2. the combined offense level for the drug offenses is 26.5 §3D1.000 to avoid prosecution. .1 (Obstructing or Impeding the Administration of Justice). Exporting. because the offense level for bribery (22) is less than the offense level for the drug offenses (28). The total is 151 kilograms of marihuana. Defendant C was convicted on four counts: (1) distribution of 230 grams of cocaine. * * * * * Illustrations of the Operation of the Multiple-Count Rules The following examples. this offense level is increased by 2 levels to 28 under §3C1. Altogether there are 2 1/2 Units. it becomes part of the same Group as the drug offenses pursuant to §3D1. the offense level was therefore 28. Under §2D1. each charging robbery of a different bank. Importing.

the combined offense level is 16.000 from subcontractor A relating to contract Y (Mail Fraud). and Fraud). which results in an offense level of 16 under either §2B1. (3) The defendant received $15.1(b)(9)) or §2B4.1 (assuming the application of the "sophisticated means" enhancement in §2B1. 2009 Defendant D was convicted of four counts arising out of a scheme pursuant to which the defendant received kickbacks from subcontractors.000 from subcontractor A relating to contract X (Mail Fraud). 1990 (see Appendix C.000 from subcontractor B relating to contract Z (Commercial Bribery).1 (Theft. Property Destruction. Historical Note: Effective November 1.1 (Bribery in Procurement of Bank Loan and Other Commercial Bribery). The bribery counts are covered by §2B4. The counts were as follows: (1) The defendant received $27. 2001 (see Appendix C. amendment 303). – 370 – . amendment 350).000 from subcontractor A relating to contract X (Commercial Bribery). 1987.5 3.000. amendment 534). GUIDELINES MANUAL November 1. The mail fraud counts are covered by §2B1. November 1. 2009 (see Appendix C. (4) The defendant received $20.1. 1995 (see Appendix C. amendment 417). 1989 (see Appendix C. The total money involved is $74. 1991 (see Appendix C. amendment 617). November 1. Since these two guidelines produce identical offense levels. amendment 737). November 1. Amended effective November 1. November 1.§3D1. which treats the offense as a sophisticated fraud. (2) The defendant received $12. November 1.

the offense level determined prior to the operation of subsection (a) is level 16 or greater. In determining whether a defendant qualifies under subsection (a). but are not limited to.ACCEPTANCE OF RESPONSIBILITY §3E1. 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. However. voluntary assistance to authorities in the recovery of the fruits and instrumentalities of the offense. 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.November 1.1. relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility. decrease the offense level by 1 additional level. 2009 GUIDELINES MANUAL §3E1. the following: (a) truthfully admitting the conduct comprising the offense(s) of conviction. voluntary termination or withdrawal from criminal conduct or associations.3 (Relevant Conduct). If the defendant qualifies for a decrease under subsection (a). Note that a defendant is not required to volunteer. and truthfully admitting or not falsely denying any additional relevant conduct for which the defendant is accountable under §1B1. or frivolously contests. voluntary resignation from the office or position held during the commission of the offense. or affirmatively admit. voluntary surrender to authorities promptly after commission of the offense. (b) Commentary Application Notes: 1. Acceptance of Responsibility (a) If the defendant clearly demonstrates acceptance of responsibility for his offense. a defendant who falsely denies. relevant conduct beyond the offense of conviction in order to obtain a reduction under subsection (a).1 PART E . appropriate considerations include. voluntary payment of restitution prior to adjudication of guilt. thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently. decrease the offense level by 2 levels. (b) (c) (d) (e) (f) – 371 – .

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

1990 (see Appendix C. amendment 258). in a timely fashion. November 1. to a defendant whose offense level is level 15 or lower prior to application of subsection (a). April 30. 1987. 1989 (see Appendix C. Historical Note: Effective November 1. 1992 (see Appendix C. amendment 459). 2003 (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). November 1. 2003. a defendant who clearly demonstrates acceptance of responsibility for his offense by taking. 2009 GUIDELINES MANUAL §3E1. Amended effective January 15.1 Background: The reduction of offense level provided by this section recognizes legitimate societal interests. Application Note 6 (including adding the last paragraph of that application note). Such a defendant has accepted responsibility in a way that ensures the certainty of his just punishment in a timely manner. 1988 (see Appendix C. For several reasons. Subsection (b) does not apply. amendment 351). thereby appropriately meriting an additional reduction. amendment 649). 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. Section 401(g) of Public Law 108–21 directly amended subsection (b). the actions listed above (or some equivalent action) is appropriately given a lower offense level than a defendant who has not demonstrated acceptance of responsibility. At offense level 15 or lower. however. amendment 46). November 1. Subsection (a) provides a 2-level decrease in offense level. effective April 30. – 373 – .November 1. and the Background Commentary.

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

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

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

(b). one point is added under §4A1. sentencing structures.3 authorizes the court to depart from the otherwise applicable criminal history category in certain circumstances. – 377 – . Failure to report for service of a sentence of imprisonment is to be treated as an escape from such sentence. A total of up to 3 points may be added under §4A1. 2009 GUIDELINES MANUAL §4A1.2(a).1(a). 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. See §4A1.1 to apply. Background: Prior convictions may represent convictions in the federal system. 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. A defendant who commits the instant offense while a violation warrant from a prior sentence is outstanding (e. such as whether the conviction was designated a felony or misdemeanor. the District of Columbia.1(e). criminal history categories are based on the maximum term imposed in previous sentences rather than on other measures. Without the second sentence. a total of 3 points also is added under §4A1. fifty state systems. 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. any relevant conduct) less than two years following release from confinement on a sentence counted under §4A1. and military courts.1(f) because the sentence for the second robbery already resulted in an additional point under §4A1. and manner of sentence pronouncement.e.2(m).1(a). parole. To minimize problems with imperfect measures of past crime seriousness. a defendant’s criminal history includes two robbery convictions for offenses committed on different occasions.. See §4A1. However. the defendant would only have received two points under §4A1. by itself. §4A1. For purposes of this guideline.1(f).1(b) for the one-year sentence of imprisonment.1(d). The sentences for these offenses were imposed on the same day and are counted as a single prior sentence. or (c)). Two points are added if the defendant committed any part of the instant offense (i. "crime of violence" has the meaning given that term in §4B1.1(f) because the second sentence did not result in any additional point(s) (under §4A1.1(f) for each such sentence that did not result in any additional points under §4A1. 6.2(a)(2)). a total of 3 points is added under §4A1.. See §4A1. territories. a probation. §4A1. An additional point is added under §4A1.1(f). In contrast.g. See §4A1. For example. tribal.November 1.1(a).1(a). but a sentence to pay a fine. (b).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). if two points are added under §4A1. In recognition of the imperfection of this measure however. even if that sentence would have expired absent such warrant.1(e). a term of unsupervised probation would be included.1(a) or (b). But no additional point is added under §4A1. 5. §4A1. and foreign.2(a)(2).2(n). would not be included. There are jurisdictional variations in offense definitions.2(p). For example. or (c). This also applies if the defendant committed the instant offense while in imprisonment or escape status on such a sentence. 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). only one point is added under §4A1.

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

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

whenever imposed. add 1 point under §4A1. 2009 Minor traffic infractions (e. or a plea of nolo contendere. (2) (3) (4) (f) Diversionary Dispositions Diversion from the judicial process without a finding of guilt (e. Also count any prior sentence of imprisonment exceeding one year and one month.. (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. – 380 – . Any other prior sentence that was imposed within ten years of the defendant’s commencement of the instant offense is counted.1(c) even if a conviction is not formally entered..2 GUIDELINES MANUAL November 1.2(d)(2).1(c) for each adult or juvenile sentence imposed within five years of the defendant’s commencement of the instant offense not covered in (A). Any prior sentence not within the time periods specified above is not counted. The applicable time period for certain sentences resulting from offenses committed prior to age eighteen is governed by §4A1.g. (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.g.§4A1. deferred prosecution) is not counted. speeding) Public intoxication Vagrancy. in a judicial proceeding is counted as a sentence under §4A1. add 3 points under §4A1.1(b) for each adult or juvenile sentence to confinement of at least sixty days if the defendant was released from such confinement within five years of his commencement of the instant offense.1(a) for each such sentence. In any other case. except that diversion from juvenile court is not counted. that resulted in the defendant being incarcerated during any part of such fifteen-year period. A diversionary disposition resulting from a finding or admission of guilt. (A) add 2 points under §4A1.

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

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

S. 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. For example. 3. 5. 2.2 offense is similar to the instant offense (because sentences for other offenses set forth in §4A1. Sentences for Driving While Intoxicated or Under the Influence. – 383 – . in the case of a determinate sentence of five years.—Convictions for driving while intoxicated or under the influence (and similar offenses by whatever name they are known) are counted.C. if a defendant was convicted of a number of serious non-violent offenses committed on different occasions. 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.. would have served time). A sentence of probation is to be treated as a sentence under §4A1.2(a)(3) and (b)(2). in the case of an indeterminate sentence for a term not to exceed the defendant’s twenty-first birthday. $1... For the purposes of applying §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. the length of a sentence of imprisonment is the stated maximum (e. 21 U.3 (Adequacy of Criminal History Category). 4. Upward Departure Provision. the stated maximum is five years. That is.g. or (c).g. if the defendant escaped. or Invalidated Convictions. With respect to the current sentencing proceeding.g. 6. criminal history points are based on the sentence pronounced. 2009 GUIDELINES MANUAL §4A1.November 1.1(c) unless a condition of probation requiring imprisonment of at least sixty days was imposed. § 851 expressly provides that a defendant may collaterally attack certain prior convictions).—To qualify as a sentence of imprisonment. 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.2(b)(1) and (2). in the case of an indeterminate sentence of one to five years.2(c). Nonetheless.000 fine or ninety days’ imprisonment) is treated as a non-imprisonment sentence. 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. See §4A1.—A sentence which specifies a fine or other nonincarcerative disposition as an alternative to a term of imprisonment (e. (b). Vacated. In such a case. See §4A1.2(c)(1) are counted only if they are of a specified type and length). not the length of time actually served. 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). the stated maximum is five years. an upward departure may be warranted. in the case of an indeterminate sentence for a term not to exceed five years. or (B) have been ruled constitutionally invalid in a prior case are not to be counted.—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. Reversed. Such offenses are not minor traffic infractions within the meaning of §4A1.1(a). the stated maximum is five years. the defendant must have actually served a period of imprisonment on such sentence (or. Sentence of Imprisonment.

g. the term "commencement of the instant offense" includes any relevant conduct. By this approach.2(a)(2). probation was revoked on both sentences as a result of the same violation conduct. However. the sentence imposed upon revocation.—Section 4A1. the maximum three points would be assigned. 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. however. If the court finds that a sentence imposed outside this time period is evidence of similar. 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. If one sentence had been a "straight" probationary sentence and the other had been a probationary sentence that had required service of 15 days of imprisonment.—Section 4A1. if any. did not exceed one year and one month. no more than three points will be assessed for a single conviction. 10. or serious dissimilar. 9. Therefore.—Section 4A1.—A number of jurisdictions have various procedures pursuant to which previous convictions may be set aside or the defendant may be pardoned for reasons unrelated to innocence or errors of law.2(k) covers revocations of probation and other conditional sentences where the original term of imprisonment imposed.—Section 4A1. As used in §4A1.3 (Relevant Conduct).2(a)(2). Where a revocation applies to multiple sentences. Revocations to be Considered. the sentence given upon revocation should be added to the original sentence of imprisonment. Diversionary Dispositions. for offenses committed prior to age eighteen.§4A1. and the defendant was sentenced to a total of 45 days of imprisonment.2(d) covers offenses committed prior to age eighteen.2 7. that conviction would be computed separately from the sentence imposed for the revocation. ." this provision applies to all offenses committed prior to age eighteen. Sentences resulting from such convictions are to be counted. §4A1. even if probation or conditional release was subsequently revoked. the court may consider this information in determining whether an upward departure is warranted under §4A1. criminal conduct.2(j).3 (Adequacy of Criminal History Category). Rather than count the original sentence and the resentence after revocation as separate sentences. add the term of imprisonment imposed upon revocation to the sentence that will result in the greatest increase in criminal history points. Example: A defendant was serving two probationary sentences. GUIDELINES MANUAL November 1.2(d)(2) and (e) establishes the time period within which prior sentences are counted. Convictions Set Aside or Defendant Pardoned. if any.. e. Attempting to count every juvenile adjudication would have the potential for creating large disparities due to the differential availability of records. See §1B1. the revocation term of imprisonment (45 days) would be – 384 – 8. at the time of revocation another sentence was imposed for a new criminal conviction.2(d)(2) and (e). or the total of both sentences exceeded one year and one month. in order to restore civil rights or to remove the stigma associated with a criminal conviction. each counted separately under §4A1. If the sentence originally imposed. 2009 Offenses Committed Prior to Age Eighteen. If. Applicable Time Period. To avoid disparities from jurisdiction to jurisdiction in the age at which a defendant is considered a "juvenile. and the total should be counted as if it were one sentence. only those that resulted in adult sentences of imprisonment exceeding one year and one month. and such sentences are counted separately under §4A1. 11.2(f) requires counting prior adult diversionary dispositions if they involved a judicial determination of guilt or an admission of guilt in open court. expunged convictions are not counted.

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

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

1 (Application Instructions).4 (Armed Career Criminal).—In departing from the otherwise applicable criminal history category under this policy statement. the terms "depart".3 (B) ARMED CAREER CRIMINAL AND REPEAT AND DANGEROUS SEX OFFENDER. (3) LIMITATIONS. "departure". and (ii) a repeat and dangerous sex offender against minors within the meaning of §4B1. the specific reasons why the applicable criminal history category substantially under-represents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes. In the case of a downward departure.—The extent of a downward departure under this subsection for a career offender within the meaning of §4B1. Definitions.November 1.—A downward departure under this subsection is prohibited for (i) an armed career criminal within the meaning of §4B1. LIMITATION ON APPLICABILITY OF §5C1. the defendant had more than one criminal history point under §4A1. 2009 GUIDELINES MANUAL §4A1.—For purposes of this policy statement.2 (Limitation on Applicability of Statutory Maximum Sentences in Certain Cases) if.—A defendant whose criminal history category is Category I after receipt of a downward departure under this subsection does not meet the criterion of subsection (a)(1) of §5C1. the court shall specify in writing the following: (1) In the case of an upward departure. before receipt of the downward departure.1 (Criminal History Category).2 IN EVENT OF DOWNWARD DEPARTURE TO CATEGORY I.5 (Repeat and Dangerous Sex Offender Against Minors). and "upward departure" have the meaning given those terms in Application Note 1 of the Commentary to §1B1.— (A) LIMITATION ON EXTENT OF DOWNWARD DEPARTURE FOR CAREER OFFENDER. "downward departure". (2) Commentary Application Notes: 1.1 (Career Offender) may not exceed one criminal history category. – 387 – . (B) (c) WRITTEN SPECIFICATION OF BASIS FOR DEPARTURE. the specific reasons why the applicable criminal history category substantially over-represents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes.

yet who may actually pose a greater risk of serious recidivism than older defendants. (iii) (iv) (B) Upward Departures from Criminal History Category VI. Upward Departures. A similar instance of large scale fraudulent misconduct established by an adjudication in a Securities and Exchange Commission enforcement proceeding.3 2. A departure below the lower limit of the applicable guideline range for Criminal History Category I is prohibited under subsection (b)(2)(B). In determining whether an upward departure from Criminal History Category VI is warranted. for example. For example.. within th