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Notice

Sentencing Guidelines for United States Courts

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Notice Of Submission To Congress Of Amendments To The Sentencing Guidelines Effective November 1, 2013.

Summary

Pursuant to its authority under 28 U.S.C. 994(p), the Commission has promulgated amendments to the sentencing guidelines, policy statements, commentary, and statutory index. This notice sets forth the amendments and the reason for each amendment.

 

Table of Contents Back to Top

DATES: Back to Top

The Commission has specified an effective date of November 1, 2013, for the amendments set forth in this notice.

FOR FURTHER INFORMATION CONTACT: Back to Top

Jeanne Doherty, Public Affairs Officer, 202-502-4502. The amendments set forth in this notice also may be accessed through the Commission's Web site at www.ussc.gov.

SUPPLEMENTARY INFORMATION: Back to Top

The United States Sentencing Commission is an independent agency in the judicial branch of the United States Government. The Commission promulgates sentencing guidelines and policy statements for federal sentencing courts pursuant to 28 U.S.C. 994(a). The Commission also periodically reviews and revises previously promulgated guidelines pursuant to 28 U.S.C. 994(o) and generally submits guideline amendments to Congress pursuant to 28 U.S.C. 994(p) not later than the first day of May each year. Absent action of Congress to the contrary, submitted amendments become effective by operation of law on the date specified by the Commission (generally November 1 of the year in which the amendments are submitted to Congress).

Notice of proposed amendments was published in the Federal Register on January 18, 2013 (see 78 FR 4197). The Commission held a public hearing on the proposed amendments in Washington, DC, on March 13, 2013. On April 30, 2013, the Commission submitted these amendments to Congress and specified an effective date of November 1, 2013.

Authority: Back to Top

28 U.S.C. 994(a), (o), and (p); USSC Rules of Practice and Procedure 4.1.

Patti B. Saris,

Chair.

1. Amendment: Section 2B1.1(b) is amended by striking paragraph (5); by renumbering paragraphs (6) through (8) as (5) through (7); by renumbering paragraphs (13) through (18) as (14) through (19); by inserting after paragraph (12) the following:

“(13) (Apply the greater) If the offense involved misappropriation of a trade secret and the defendant knew or intended—

(A) that the trade secret would be transported or transmitted out of the United States, increase by 2 levels; or

(B) that the offense would benefit a foreign government, foreign instrumentality, or foreign agent, increase by 4 levels.

If subparagraph (B) applies and the resulting offense level is less than level 14, increase to level 14.”; and in paragraph (16) (as so renumbered) by striking “(b)(15)(B)” and inserting “(b)(16)(B)”.

The Commentary to § 2B1.1 captioned “Application Notes” is amended in Note 6 by striking “(b)(7)” both places it appears and inserting “(b)(6)”; in Note 10 by striking “(b)(13)” both places it appears and inserting “(b)(14)”; in Note 11 by striking “(b)(15)(A)” both places it appears and inserting “(b)(16)(A)”; in Note 12 by striking “(b)(15)(B)” and inserting “(b)(16)(B)”; in Note 12(A) by striking “(b)(15)(B)(i)” and inserting “(b)(16)(B)(i)”; in Note 12(B) by striking “(b)(15)(B)(ii)” and inserting “(b)(16)(B)(ii)”; in Note 13 by striking “(b)(17)” both places it appears and inserting “(b)(18)”; in Note 13(B) by striking “(b)(17)(A)(iii)” both places it appears and inserting “(b)(18)(A)(iii)”, and by striking “(b)(15)(B)” both places it appears and inserting “(b)(16)(B)”; in Note 14 by striking “(b)(18)” each place it appears and inserting “(b)(19)”; and in Note 19(B) by striking “(b)(17)(A)(iii)” and inserting “(b)(18)(A)(iii)”.

The Commentary to § 2B1.1 captioned “Background” is amended by striking “(b)(6)”, “(b)(8)”, “(b)(14)(B)”, “(b)(15)(A)”, “(b)(15)(B)(i)”, “(b)(16)”, “(b)(17)”, and “(b)(17)(B)” and inserting “(b)(5)”, “(b)(7)”, “(b)(15)(B)”, “(b)(16)(A)”, “(b)(16)(B)(i)”, “(b)(17)”, “(b)(18)”, and “(b)(18)(B)”, respectively; and by inserting before the paragraph that begins “Subsection (b)(15)(B)” (as so amended) the following:

“Subsection (b)(13) implements the directive in section 3 of Public Law 112-269.”.

Reason for Amendment: This amendment responds to section 3 of the Foreign and Economic Espionage Penalty Enhancement Act of 2012, Public Law 112-269 (enacted January 14, 2013), which contains a directive to the Commission regarding offenses involving stolen trade secrets or economic espionage.

Section 3(a) of the Act directs the Commission to “review and, if appropriate, amend” the guidelines “applicable to persons convicted of offenses relating to the transmission or attempted transmission of a stolen trade secret outside of the United States or economic espionage, in order to reflect the intent of Congress that penalties for such offenses under the Federal sentencing guidelines and policy statements appropriately reflect the seriousness of these offenses, account for the potential and actual harm caused by these offenses, and provide adequate deterrence against such offenses.” Section 3(b) of the Act states that, in carrying out the directive, the Commission shall consider, among other things, whether the guidelines adequately address the simple misappropriation of a trade secret; the transmission or attempted transmission of a stolen trade secret outside of the United States; and the transmission or attempted transmission of a stolen trade secret outside of the United States that is committed or attempted to be committed for the benefit of a foreign government, foreign instrumentality, or foreign agent.

The offenses described in the directive may be prosecuted under 18 U.S.C. § 1831 (Economic espionage), which requires that the defendant specifically intend or know that the offense “will benefit any foreign government, foreign instrumentality, or foreign agent,” and 18 U.S.C. § 1832 (Theft of trade secrets), which does not require such specific intent or knowledge. The statutory maximum terms of imprisonment are 15 years for a section 1831 offense and 10 years for a section 1832 offense. Both offenses are referenced in Appendix A (Statutory Index) to § 2B1.1 (Theft, Property Destruction, and Fraud).

In response to the directive, the amendment revises the existing specific offense characteristic at § 2B1.1(b)(5), which provides an enhancement of two levels “[i]f the offense involved misappropriation of a trade secret and the defendant knew or intended that the offense would benefit a foreign government, foreign instrumentality, or foreign agent,” in two ways. First, it broadens the scope of the enhancement to provide a 2-level increase for trade secret offenses in which the defendant knew or intended that the trade secret would be transported or transmitted out of the United States. Second, it increases the severity of the enhancement to provide a 4-level enhancement and a minimum offense level of 14 for trade secret offenses in which the defendant knew or intended that the offense would benefit a foreign government, foreign instrumentality, or foreign agent. The enhancement also is redesignated as subsection (b)(13).

In responding to the directive, the Commission consulted with individuals or groups representing law enforcement, owners of trade secrets, victims of economic espionage offenses, the United States Department of Justice, the United States Department of Homeland Security, the United States Department of State, the Office of the United States Trade Representative, the Federal Public and Community Defenders, and standing advisory groups, among others. The Commission also considered relevant data and literature.

The Commission received public comment and testimony that the transmission of stolen trade secrets outside of the United States creates significant obstacles to effective investigation and prosecution and causes both increased harm to victims and more general harms to the nation. With respect to the victim, civil remedies may not be readily available or effective, and the transmission of a stolen trade secret outside of the United States substantially increases the risk that the trade secret will be exploited by a foreign competitor. In contrast, the simple movement of a stolen trade secret within a domestic multinational company (e.g., from a United States office to an overseas office of the same company) may not pose the same risks or harms. More generally, the Commission heard that foreign actors increasingly target United States companies for trade secret theft and that such offenses pose a growing threat to the nation's global competitiveness, economic growth, and national security. Accordingly, the Commission determined that a 2-level enhancement is warranted for cases in which the defendant knew or intended that a stolen trade secret would be transported or transmitted outside of the United States.

The Commission also received public comment and testimony that cases involving economic espionage (i.e., trade secret offenses that benefit foreign governments or entities under the substantial control of foreign governments) are particularly serious. In such cases, the United States is unlikely to obtain a foreign government's cooperation when seeking relief for the victim, and offenders backed by a foreign government likely will have significant financial resources to combat civil remedies. In addition, a foreign government's involvement increases the threat to the nation's economic and national security. Accordingly, the Commission determined that the existing enhancement for economic espionage should be increased from 2 to 4 levels and that such offenses should be subject to a minimum offense level of 14. This heightened enhancement is consistent with the higher statutory maximum penalties and fines applicable to such offenses and the Commission's established treatment of economic espionage as a more serious form of trade secret theft.

Consistent with the directive, the Commission also considered whether the guidelines appropriately account for the simple misappropriation of a trade secret. The Commission determined that such offenses are adequately accounted for by existing provisions in the Guidelines Manual, such as the loss table in § 2B1.1(b)(1), the sophisticated means enhancement at § 2B1.1(b)(10), and the adjustment for abuse of position of trust or use of special skill at § 3B1.3.

2. Amendment: Section 2B1.1 is amended by inserting before paragraph (9) the following new paragraph:

“(8) (Apply the greater) If—

(A) the offense involved conduct described in 18 U.S.C. § 670, increase by 2 levels; or

(B) the offense involved conduct described in 18 U.S.C. § 670, and the defendant was employed by, or was an agent of, an organization in the supply chain for the pre-retail medical product, increase by 4 levels.”;

The Commentary to § 2B1.1 captioned “Application Notes” is amended in Note 1 by inserting after the paragraph that begins “ `Personal information' means” the following:

“ `Pre-retail medical product' has the meaning given that term in 18 U.S.C. § 670(e).”; and by inserting after the paragraph that begins “ `Publicly traded company' means” the following:

“ `Supply chain' has the meaning given that term in 18 U.S.C. § 670(e).”; in Note 3(F)(i) by striking “Note 9(A)” and inserting “Note 10(A)”; and by renumbering Notes 7 through 19 as 8 through 20; by inserting after Note 6 the following:

“7. Application of Subsection (b)(8)(B).—If subsection (b)(8)(B) applies, do not apply an adjustment under § 3B1.3 (Abuse of Position of Trust or Use of Special Skill).”; and in Note 20 (as so renumbered) by adding at the end of subparagraph (A)(ii) as the last sentence the following: “Similarly, an upward departure would be warranted in a case involving conduct described in 18 U.S.C. § 670 if the offense resulted in serious bodily injury or death, including serious bodily injury or death resulting from the use of the pre-retail medical product.”.

The Commentary to § 2B1.1 captioned “Background” is amended by inserting before the paragraph that begins “Subsection (b)(9)(D)” the following:

“Subsection (b)(8) implements the directive to the Commission in section 7 of Public Law 112-186.”.

However, if § 2B1.1(b) already contains a paragraph (8) because the renumbering of paragraphs by Amendment 1 of this document has not taken effect, renumber the new paragraph inserted into § 2B1.1(b) as paragraph (8A) rather than paragraph (8), and revise the Commentary so that the new Note 7 inserted into the Application Notes and the new paragraph inserted into the Background refer to subsection (b)(8A) rather than subsection (b)(8).

Appendix A (Statutory Index) is amended by inserting after the line referenced to 18 U.S.C. § 669 the following:

“18 U.S.C. § 670 2B1.1”.

Reason for Amendment: This amendment responds to the Strengthening and Focusing Enforcement to Deter Organized Stealing and Enhance Safety Act of 2012, Public Law 112-186 (enacted October 5, 2012) (the “Act”), which addressed various offenses involving “pre-retail medical products,” defined as “a medical product that has not yet been made available for retail purchase by a consumer.” The Act created a new criminal offense at 18 U.S.C. § 670 for theft of pre-retail medical products, increased statutory penalties for certain related offenses when a pre-retail medical product is involved, and contained a directive to the Commission.

New Offense at 18 U.S.C. § 670 Back to Top

The new offense at section 670 makes it unlawful for any person in (or using any means or facility of) interstate or foreign commerce to—

(1) embezzle, steal, or by fraud or deception obtain, or knowingly and unlawfully take, carry away, or conceal a pre-retail medical product;

(2) knowingly and falsely make, alter, forge, or counterfeit the labeling or documentation (including documentation relating to origination or shipping) of a pre-retail medical product;

(3) knowingly possess, transport, or traffic in a pre-retail medical product that was involved in a violation of paragraph (1) or (2);

(4) with intent to defraud, buy, or otherwise obtain, a pre-retail medical product that has expired or been stolen;

(5) with intent to defraud, sell, or distribute, a pre-retail medical product that is expired or stolen; or

(6) attempt or conspire to violate any of paragraphs (1) through (5).

The offense generally carries a statutory maximum term of imprisonment of three years. If the offense is an “aggravated offense,” however, higher statutory maximum terms of imprisonment are provided. The offense is an “aggravated offense” if—

(1) the defendant is employed by, or is an agent of, an organization in the supply chain for the pre-retail medical product; or

(2) the violation—

(A) involves the use of violence, force, or a threat of violence or force;

(B) involves the use of a deadly weapon;

(C) results in serious bodily injury or death, including serious bodily injury or death resulting from the use of the medical product involved; or

(D) is subsequent to a prior conviction for an offense under section 670.

Specifically, the higher statutory maximum terms of imprisonment are:

(1) Five years, if—

(A) the defendant is employed by, or is an agent of, an organization in the supply chain for the pre-retail medical product; or

(B) the violation (i) involves the use of violence, force, or a threat of violence or force, (ii) involves the use of a deadly weapon, or (iii) is subsequent to a prior conviction for an offense under section 670.

(2) 15 years, if the value of the medical products involved in the offense is $5,000 or greater.

(3) 20 years, if both (1) and (2) apply.

(4) 30 years, if the offense results in serious bodily injury or death, including serious bodily injury or death resulting from the use of the medical product involved.

The amendment amends Appendix A (Statutory Index) to reference the new offense at 18 U.S.C. § 670 to § 2B1.1 (Theft, Property Destruction, and Fraud). The Commission concluded that § 2B1.1 is the appropriate guideline because the elements of the new offense include theft or fraud.

Response to Directive Back to Top

Section 7 of the Act directs the Commission to “review and, if appropriate, amend” the federal sentencing guidelines and policy statements applicable to the new offense and the related offenses “to reflect the intent of Congress that penalties for such offenses be sufficient to deter and punish such offenses, and appropriately account for the actual harm to the public from these offenses.” The amendment amends § 2B1.1 to address offenses involving pre-retail medical products in two ways.

First, the amendment adds a new specific offense characteristic at § 2B1.1(b)(8) that provides a two-pronged enhancement with an instruction to apply the greater. Prong (A) provides a 2-level enhancement if the offense involved conduct described in 18 U.S.C. § 670. Prong (B) provides a 4-level enhancement if the offense involved conduct described in 18 U.S.C. § 670 and the defendant was employed by, or an agent of, an organization in the supply chain for the pre-retail product. Accompanying this new specific offense characteristic is new Commentary providing that, if prong (B) applies, “do not apply an adjustment under § 3B1.3 (Abuse of Position of Trust or Use of Special Skill).”

Based on public comment, testimony and sentencing data, the Commission concluded that an enhancement differentiating fraud and theft offenses involving medical products from those involving other products is warranted by the additional risk such offenses pose to public health and safety. In addition, such offenses undermine the public's confidence in the medical regulatory and distribution system. The Commission also concluded that the risks and harms it identified would be present in any theft or fraud offense involving a pre-retail medical product, regardless of the offense of conviction. Therefore application of the new specific offense characteristic is not limited to offenses charged under 18 U.S.C. § 670.

The amendment provides a 4-level enhancement for defendants who commit such offenses while employed in the supply chain for the pre-retail medical product. Such defendants are subject to an increased statutory maximum and the Commission determined that a heightened enhancement should apply to reflect the likelihood that the defendant's position in the supply chain facilitated the commission or concealment of the offense. Defendants who receive the 4-level enhancement are not subject to the adjustment at § 3B1.3 because the new enhancement adequately accounts for the concerns covered by § 3B1.3. The Commission determined that existing specific offense characteristics generally account for other aggravating factors included in the Act, such as loss, use or threat of force, risk of death or serious bodily injury, and weapon involvement, and therefore additional new specific offense characteristics are not necessary. See, e.g.,”§§ 2B1.1(b)(1), (b)(3), and (b)(15) (as redesignated by the amendment).

Second, it amends the upward departure provisions in the Commentary to § 2B1.1 at Application Note 19(A) to provide—as an example of a case in which an upward departure would be warranted—a case “involving conduct described in 18 U.S.C. § 670 if the offense resulted in serious bodily injury or death, including serious bodily injury or death resulting from the use of the pre-retail medical product.” Public comment and testimony indicated that § 2B1.1 may not adequately account for the harm created by theft or fraud offenses involving pre-retail medical products when such serious bodily injury or death actually occurs as a result of the offense. For example, some pre-retail medical products are stolen as part of a scheme to re-sell them into the supply chain, but if the products have not been properly stored in the interim, their subsequent use can seriously injure the individual consumers who buy and use them. Thus, the amendment expands the scope of the existing upward departure provision to address such harms and to clarify that an upward departure is appropriate in such cases not only if serious bodily injury or death occurred during the theft or fraud, but also if such serious bodily injury or death resulted from the victim's use of a pre-retail medical product that had previously been obtained by theft or fraud.

Finally, the proposed amendment amends the Commentary to § 2B1.1 to provide relevant definitions and make other conforming changes.

3. Amendment: Section 2B5.3(b) is amended by renumbering paragraph (5) as (6); by inserting after paragraph (4) the following:

“(5) If the offense involved a counterfeit drug, increase by 2 levels.”; and by inserting after paragraph (6) (as so renumbered) the following:

“(7) If the offense involved a counterfeit military good or service the use, malfunction, or failure of which is likely to cause (A) the disclosure of classified information; (B) impairment of combat operations; or (C) other significant harm to (i) a combat operation, (ii) a member of the Armed Forces, or (iii) national security, increase by 2 levels. If the resulting offense level is less than level 14, increase to level 14.”.

The Commentary to § 2B5.3 captioned “Application Notes” is amended in Note 1 by inserting after the paragraph that begins “'Commercial advantage” the following:

“'Counterfeit drug' has the meaning given that term in 18 U.S.C. § 2320(f)(6).

“'Counterfeit military good or service' has the meaning given that term in 18 U.S.C. § 2320(f)(4).”; by renumbering Notes 3 and 4 as 4 and 5; by inserting after Note 2 the following:

“3. Application of Subsection (b)(7).—In subsection (b)(7), `other significant harm to a member of the Armed Forces' means significant harm other than serious bodily injury or death. In a case in which the offense involved a counterfeit military good or service the use, malfunction, or failure of which is likely to cause serious bodily injury or death, subsection (b)(6)(A) (conscious or reckless risk of serious bodily injury or death) would apply.”; and in Note 5 (as so renumbered) by adding at the end the following:

“(D) The offense resulted in death or serious bodily injury.”.

The Commentary to § 2B5.3 captioned “Background” is amended by inserting after the paragraph that begins “Subsection (b)(1)” the following:

“ Subsection (b)(5) implements the directive to the Commission in section 717 of Public Law 112B144.”.

Appendix A (Statutory Index) is amended by striking the line referenced to 21 U.S.C. § 333(b) and inserting the following:

“21 U.S.C. § 333(b)(1)-(6) 2N2.1

21 U.S.C. § 333(b)(7) 2N1.1”.

Reason for Amendment: This amendment responds to two recent Acts that made changes to 18 U.S.C. § 2320 (Trafficking in counterfeit goods or services). One Act increased penalties for offenses involving counterfeit military goods and services; the other increased penalties for offenses involving counterfeit drugs and included a directive to the Commission. The amendment also responds to recent statutory changes to 21 U.S.C. § 333 (Penalties for violations of the Federal Food, Drug, and Cosmetics Act) that increase penalties for offenses involving intentionally adulterated drugs.

Section 2320 and Counterfeit Military Goods and Services Back to Top

First, the amendment responds to changes to section 2320 made by the National Defense Authorization Act for Fiscal Year 2012, Public Law 112-81 (enacted December 31, 2011) (the “NDAA”). In general, section 2320 prohibits trafficking in goods or services using a counterfeit mark, and provides a statutory maximum term of imprisonment of 10 years, or 20 years for a second or subsequent offense. If the offender knowingly or recklessly causes or attempts to cause serious bodily injury or death, the statutory maximum is increased to 20 years or any term of years or life, respectively. Offenses under section 2320 are referenced in Appendix A (Statutory Index) to § 2B5.3 (Criminal Infringement of Copyright or Trademark).

Section 818 of the NDAA amended section 2320 to add a new subsection (a)(3) that prohibits trafficking in counterfeit military goods and services, the use, malfunction, or failure of which is likely to cause serious bodily injury or death, the disclosure of classified information, impairment of combat operations, or other significant harm to a combat operation, a member of the Armed Forces, or national security. A “counterfeit military good or service” is defined as a good or service that uses a counterfeit mark and that (A) is falsely identified or labeled as meeting military specifications, or (B) is intended for use in a military or national security application. See 18 U.S.C. § 2320(f)(4). An individual who commits an offense under subsection (a)(3) is subject to a statutory maximum term of imprisonment of 20 years, or 30 years for a second or subsequent offense. See 18 U.S.C. § 2320(b)(3).

The legislative history of the NDAA indicates that Congress amended section 2320 because of concerns about national security and the protection of United States servicemen and women. After reviewing the legislative history, public comment, testimony, and data, the Commission determined that an offense involving counterfeit military goods and services that jeopardizes the safety of United States troops and compromises mission effectiveness warrants increased punishment.

Specifically, the amendment addresses offenses involving counterfeit military goods and services by amending § 2B5.3 to create a new specific offense characteristic at subsection (b)(7). Subsection (b)(7) provides a 2-level enhancement and a minimum offense level of 14 if the offense involves a counterfeit military good or service the use, malfunction, or failure of which is likely to cause the disclosure of classified information, impairment of combat operations, or other significant harm to a combat operation, a member of the Armed Forces, or to national security. The Commission set the minimum offense level at 14 so that it would be proportionate to the minimum offense level in the enhancement for “conscious or reckless risk of death or serious bodily injury” at subsection (b)(5)(A). That enhancement is moved from (b)(5)(A) to (b)(6)(A) by the amendment.

Although section 2320(a)(3) includes offenses that are likely to cause “serious bodily injury or death,” the new specific offense characteristic does not because the Commission determined that such risk of harm is adequately addressed by the existing enhancement for offenses involving the “conscious or reckless risk of death or serious bodily injury.” Consistent with that approach, the amendment includes commentary providing that the “other significant harm” specified in subsection (b)(7) does not include death or serious bodily injury and that § 2B5.3(b)(6)(A) would apply if the offense involved a counterfeit military good or service the use, malfunction, or failure of which is likely to cause serious bodily injury or death.

Section 2320 and Counterfeit Drugs Back to Top

Second, the amendment responds to changes made by section 717 of the Food and Drug Administration Safety and Innovation Act, Public Law 112-144 (enacted July 9, 2012) (the “FDASIA”), which amended section 2320 to add a new subsection (a)(4) that prohibits trafficking in a counterfeit drug. A “counterfeit drug” is a drug, as defined by section 201 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. § 321), that uses a counterfeit mark. See 18 U.S.C. § 2320(f)(6). An individual who commits an offense under subsection (a)(4) is subject to the same statutory maximum term of imprisonment as for an offense involving a counterfeit military good or service—20 years, or 30 years for a second or subsequent offense. See 18 U.S.C. 2320(b)(3).

Section 717 of the FDASIA also contained a directive to the Commission to “review and amend, if appropriate” the guidelines and policy statements applicable to persons convicted of an offense described in section 2320(a)(4)—i.e., offenses involving counterfeit drugs—“in order to reflect the intent of Congress that such penalties be increased in comparison to those currently provided by the guidelines and policy statements.”See Public Law 112-144, § 717(b)(1). In addition, section 717(b)(2) provides that, in responding to the directive, the Commission shall, among other things, ensure that the guidelines reflect the serious nature of section 2320(a)(4) offenses and consider the extent to which the guidelines account for the potential and actual harm to the public resulting from such offenses.

After reviewing the legislative history of the FDASIA, public comment, testimony, and data, the Commission determined that offenses involving counterfeit drugs involve a threat to public safety and undermine the public's confidence in the drug supply chain. Furthermore, unlike many other goods covered by the infringement guideline, offenses involving counterfeit drugs circumvent a regulatory scheme established to protect the health and safety of the public. Accordingly, the amendment responds to the directive by adding a new specific offense characteristic at § 2B5.3(b)(5) that provides a 2-level enhancement if the offense involves a counterfeit drug.

Offenses Resulting in Death or Serious Bodily Injury Back to Top

Third, the amendment amends the Commentary to '2B5.3 to add a new upward departure consideration if the offense resulted in death or serious bodily injury. The addition of this departure consideration recognizes the distinction between an offense involving the risk of death or serious bodily injury and one in which death or serious bodily injury actually results. Departures for these reasons are already authorized in the guidelines, see§§ 5K2.1 (Death) (Policy Statement), 5K2.2 (Physical Injury) (Policy Statement), but the amendment is intended to heighten awareness of the availability of a departure in such cases.

Section 333 and Offenses Involving Intentionally Adulterated Drugs Back to Top

Finally, the amendment provides a statutory reference for the new offense at 21 U.S.C. 333(b)(7) created by section 716 of the FDASIA. Section 333(b)(7) applies to any person who knowingly and intentionally adulterates a drug such that the drug is adulterated under certain provisions of 21 U.S.C. § 351 and has a reasonable probability of causing serious adverse health consequences or death to humans or animals. It provides a statutory maximum term of imprisonment of 20 years.

The amendment amends Appendix A (Statutory Index) to reference offenses under section 333(b)(7) to § 2N1.1 (Tampering or Attempting to Tamper Involving Risk of Death or Bodily Injury). The Commission concluded that offenses under section 333(b)(7) are similar to tampering offenses under 18 U.S.C. § 1365 (Tampering with consumer products), which are referenced to '2N1.1. In addition, the public health harms that Congress intended to target in adulteration cases are similar to those targeted by violations of section 1365(a) and are best addressed under § 2N1.1.

4. Amendment: The Commentary to § 2T1.1 captioned “Application Notes” is amended in Note 1 by inserting “Tax Loss.—” at the beginning; in Note 2 by inserting “Total Tax Loss Attributable to the Offense.—” at the beginning, and by redesignating subdivisions (a) through (e) as (A) through (E); by inserting after Note 2 the following:

“3. Unclaimed Credits, Deductions, and Exemptions.—In determining the tax loss, the court should account for the standard deduction and personal and dependent exemptions to which the defendant was entitled. In addition, the court should account for any unclaimed credit, deduction, or exemption that is needed to ensure a reasonable estimate of the tax loss, but only to the extent that (A) the credit, deduction, or exemption was related to the tax offense and could have been claimed at the time the tax offense was committed; (B) the credit, deduction, or exemption is reasonably and practicably ascertainable; and (C) the defendant presents information to support the credit, deduction, or exemption sufficiently in advance of sentencing to provide an adequate opportunity to evaluate whether it has sufficient indicia of reliability to support its probable accuracy (see§ 6A1.3 (Resolution of Disputed Factors) (Policy Statement)).

However, the court shall not account for payments to third parties made in a manner that encouraged or facilitated a separate violation of law (e.g.,`under the table' payments to employees or expenses incurred to obstruct justice).

The burden is on the defendant to establish any such credit, deduction, or exemption by a preponderance of the evidence. See§ 6A1.3, comment.”; by striking “3. `Criminal activity' means” and inserting the following:

“4. Application of Subsection (b)(1) (Criminal Activity).—`Criminal activity' means”; by striking “4. Sophisticated Means Enhancement. C” and inserting the following:

“5. Application of Subsection (b)(2) (Sophisticated Means).—”; by striking “5. A `credit claimed” and all that follows through the end of Note 6 and inserting the following:

“6. Other Definitions.—For purposes of this section:

A `credit claimed against tax' is an item that reduces the amount of tax directly. In contrast, a `deduction' is an item that reduces the amount of taxable income. `Gross income' has the same meaning as it has in 26 U.S.C. § 61 and 26 CFR § 1.61.”; and in Note 7 by inserting “Aggregation of Individual and Corporate Tax Loss.—” at the beginning.

Reason for Amendment: This amendment responds to a circuit conflict regarding whether a sentencing court, in calculating tax loss as defined in § 2T1.1 (Tax Evasion; Willful Failure to File Return, Supply Information, or Pay Tax; Fraudulent or False Returns, Statements, or Other Documents), may consider previously unclaimed credits, deductions, and exemptions that the defendant legitimately could have claimed if he or she had filed an accurate tax return.

The Tenth and Second Circuits have held that a sentencing court may give the defendant credit for a legitimate but unclaimed deduction. These circuit courts generally reason that, while a district court need not speculate about unclaimed deductions if the defendant offers weak support, nothing in the guidelines prohibits a sentencing court from considering evidence of unclaimed deductions where a defendant offers convincing proof. See United States v. Hoskins, 654 F.3d 1086, 1094 (10th Cir. 2011) (“[W]here defendant offers convincing proof—where the court's exercise is neither nebulous nor complex—nothing in the Guidelines prohibits a sentencing court from considering evidence of unclaimed deductions in analyzing a defendant's estimate of the tax loss suffered by the government.”); United States v. Martinez-Rios, 143 F.3d 662, 671 (2d Cir. 1998) (holding that “the sentencing court need not base its tax loss calculation on gross unreported income if it can make a 'more accurate determination' of the intended loss and that determination of the tax loss involves giving the defendant the benefit of legitimate but unclaimed deductions”); United States v. Gordon, 291 F.3d 181, 187 (2d Cir. 2002) (applying Martinez-Rios, the court held that the district court erred when it refused to consider potential unclaimed deductions in its sentencing analysis).

Six other circuit courts—the Fourth, Fifth, Seventh, Eighth, Ninth, and Eleventh—have reached the opposite conclusion, directly or indirectly holding that a court may not consider unclaimed deductions to reduce the tax loss. These circuit courts generally reason that the “object of the [defendant's] offense” is established by the amount stated on the fraudulent return, and that courts should not be required to reconstruct the defendant's return based on speculation regarding the many hypothetical ways the defendant could have completed the return. See United States v. Delfino, 510 F.3d 468, 473 (4th Cir. 2007) (“The law simply does not require the district court to engage in [speculation as to what deductions would have been allowed], nor does it entitle the Delfinos to the benefit of deductions they might have claimed now that they stand convicted of tax evasion.”); United States v. Phelps, 478 F.3d 680, 682 (5th Cir. 2007) (holding that the defendant could not reduce tax loss by taking a social security tax deduction that he did not claim on the false return); United States v. Chavin, 316 F.3d 666, 677 (7th Cir. 2002) (“Here, the object of [the defendant]'s offense was the amount by which he underreported and fraudulently stated his tax liability on his return; reference to other unrelated mistakes on the return such as unclaimed deductions tells us nothing about the amount of loss to the government that his scheme intended to create.”); United States v. Psihos, 683 F.3d 777, 781-82 (7th Cir. 2012) (following Chavin in disallowing consideration of unclaimed deductions); United States v. Sherman, 372 F.App'x 668, 676-77 (8th Cir. 2010); United States v. Blevins, 542 F.3d 1200, 1203 (8th Cir. 2008) (declining to decide “whether an unclaimed tax benefit may ever offset tax loss,” but finding the district court properly declined to reduce tax loss based on taxpayers' unclaimed deductions); United States v. Yip, 592 F.3d 1035, 1041 (9th Cir. 2010) (“We hold that § 2T1.1 does not entitle a defendant to reduce the tax loss charged to him by the amount of potentially legitimate, but unclaimed, deductions even if those deductions are related to the offense.”); United States v. Clarke, 562 F.3d 1158, 1165 (11th Cir. 2009) (holding that the defendant was not entitled to a tax loss calculation based on a filing status other than the one he actually used; “[t]he district court did not err in computing the tax loss based on the fraudulent return Clarke actually filed, and not on the tax return Clarke could have filed but did not.”).

The amendment resolves the conflict by amending the Commentary to § 2T1.1 to establish a new application note regarding the consideration of unclaimed credits, deductions, or exemptions in calculating a defendant's tax loss. This amendment reflects the Commission's view that consideration of legitimate unclaimed credits, deductions, or exemptions, subject to certain limitations and exclusions, is most consistent with existing provisions regarding the calculation of tax loss in § 2T1.1. See, e.g., USSG § 2T1.1, comment. (n.1) (“the guidelines contemplate that the court will simply make a reasonable estimate based on the available facts”); USSG § 2T1.1, comment. (backg'd.) (“a greater tax loss is obviously more harmful to the treasury and more serious than a smaller one with otherwise similar characteristics”); USSG § 2T1.1, comment. (n.1) (allowing a sentencing court to go beyond the presumptions set forth in the guideline if “the government or defense provides sufficient information for a more accurate assessment of the tax loss,” and providing “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 new application note first provides that courts should always account for the standard deduction and personal and dependent exemptions to which the defendant was entitled. The Commission received public comment and testimony that such deductions and exemptions are commonly considered and accepted by the government during the course of its investigation and during the course of plea negotiations. Consistent with this standard practice, the Commission determined that accounting for these generally undisputed and readily verifiable deductions and exemptions where they are not previously claimed (most commonly where the offense involves a failure to file a tax return) is appropriate.

The new application note further provides that courts should also account for any other previously unclaimed credit, deduction, or exemption that is needed to ensure a reasonable estimate of the tax loss, but only to the extent certain conditions are met. First, the credit, deduction, or exemption must be one that was related to the tax offense and could have been claimed at the time the tax offense was committed. This condition reflects the Commission's determination that a defendant should not be permitted to invoke unforeseen or after-the-fact changes or characterizations—such as offsetting losses that occur before or after the relevant tax year or substituting a more advantageous depreciation method or filing status—to lower the tax loss. To permit a defendant to optimize his return in this manner would unjustly reward defendants, and could require unjustifiable speculation and complexity at the sentencing hearing.

Second, the otherwise unclaimed credit, deduction, or exemption must be reasonably and practicably ascertainable. Consistent with the instruction in Application Note 1, this condition reaffirms the Commission's position that sentencing courts need only make a reasonable estimate of tax loss. In this regard, the Commission recognized that consideration of some unclaimed credits, deductions, or exemptions could require sentencing courts to make unnecessarily complex tax determinations, and therefore concluded that limiting consideration of unclaimed credits, deductions, or exemptions to those that are reasonably and practicably ascertainable is appropriate.

Third, the defendant must present information to support the credit, deduction, or exemption sufficiently in advance of sentencing to provide an adequate opportunity to evaluate whether it has sufficient indicia of reliability to support its probable accuracy. Consistent with the principles set forth in § 6A1.3 (Resolution of Disputed Factors) (Policy Statement), this condition ensures that the parties have an adequate opportunity to present information relevant to the court's consideration of any unclaimed credits, deductions, or exemptions raised at sentencing.

In addition, the new application note provides that certain categories of credits, deductions, or exemptions shall not be considered by the court in any case. In particular, “the court shall not account for payments to third parties made in a manner that encouraged or facilitated a separate violation of law (e.g.,`under the table' payments to employees or expenses incurred to obstruct justice).” The Commission determined that payments made in this manner result in additional harm to the tax system and the legal system as a whole. Therefore, to use them to reduce the tax loss would unjustifiably benefit the defendant and would result in a tax loss figure that understates the seriousness of the offense and the culpability of the defendant.

Finally, the application note makes clear that the burden is on the defendant to establish any credit, deduction, or exemption permitted under this new application note by a preponderance of the evidence, which is also consistent with the commentary in § 6A1.3.

5. Amendment: The Commentary to § 3E1.1 captioned “Application Notes” is amended in Note 6 by adding at the end of the paragraph that begins “Because the Government” the following as the last sentence: “The government should not withhold such a motion based on interests not identified in § 3E1.1, such as whether the defendant agrees to waive his or her right to appeal.”; and by adding after the paragraph that begins “Because the Government” the following new paragraph:

“If the government files such a motion, and the court in deciding whether to grant the motion also determines 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, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, the court should grant the motion.”.

The Commentary to § 3E1.1 captioned “Background” is amended in the paragraph that begins “Section 401(g)” by striking “the last paragraph” and inserting “the first sentence of the second paragraph”.

Reason for Amendment: This amendment addresses two circuit conflicts involving the guideline for acceptance of responsibility, § 3E1.1 (Acceptance of Responsibility). A defendant who clearly demonstrates acceptance of responsibility for his offense receives a 2-level reduction under subsection (a) of § 3E1.1. The two circuit conflicts both involve the circumstances under which the defendant is eligible for a third level of reduction under subsection (b) of § 3E1.1. Subsection (b) provides:

(b) If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, 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, 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 1 additional level.

The first circuit conflict involves the government's discretion under subsection (b) and, in particular, whether the government may withhold a motion based on an interest not identified in § 3E1.1, such as the defendant's refusal to waive his right to appeal. The second conflict involves the court's discretion under subsection (b) and, in particular, whether the court may decline to apply the third level of reduction when the government has moved for it.

These circuit conflicts are unusual in that they involve guideline and commentary provisions that Congress directly amended. See section 401(g) of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, Public Law 108-21 (the “PROTECT Act”); see also USSG App. C, Amendment 649 (effective April 30, 2003) (implementing amendments to the guidelines made directly by the PROTECT Act). They also implicate a congressional directive to the Commission not to “alter or repeal” the congressional amendments. See section 401(j)(4) of the PROTECT Act. Accordingly, in considering these conflicts, the Commission has not only reviewed public comment, sentencing data, case law, and the other types of information it ordinarily considers, but has also studied the operation of § 3E1.1 before the PROTECT Act, the congressional action to amend § 3E1.1, and the legislative history of that congressional action.

The Government's Discretion to Withhold the Motion Back to Top

The first circuit conflict involves the government's discretion under subsection (b) and, in particular, whether the government may withhold a motion based on an interest not identified in § 3E1.1, such as the defendant's refusal to waive his right to appeal.

Several circuits have held that a defendant's refusal to sign an appellate waiver is a legitimate reason for the government to withhold a § 3E1.1(b) motion. See, e.g., United States v. Johnson, 581 F.3d 994, 1002 (9th Cir. 2009) (holding that “allocation and expenditure of prosecutorial resources for the purposes of defending an appeal is a rational basis” for such refusal); United States v. Deberry, 576 F.3d 708, 711 (7th Cir. 2009) (holding that requiring the defendant to sign an appeal waiver would avoid “expense and uncertainty” on appeal); United States v. Newson, 515 F.3d 374, 378 (5th Cir. 2008) (holding that the government's interests under § 3E1.1 encompass not only the government's time and effort at prejudgment stage but also at post-judgment proceedings).

In contrast, the Fourth Circuit has held that a defendant's refusal to sign an appellate waiver is not a legitimate reason for the government to withhold a § 3E1.1(b) motion. See United States v. Divens, 650 F.3d 343, 348 (4th Cir. 2011) (stating that “the text of § 3E1.1(b) reveals a concern for the efficient allocation of trial resources, not appellate resources” [emphasis in original]); see also United States v. Davis, No. 12-3552, slip op. at 5, __ F.3d __ (7th Cir., April 9, 2013) (Rovner, J., concurring) (“insisting that [the defendant] waive his right to appeal before he may receive the maximum credit under the Guidelines for accepting responsibility serves none of the interests identified in section 3E1.1”). The majority in Davis called for the conflict to be resolved, stating: “Resolution of this conflict is the province of the Supreme Court or the Sentencing Commission.”Davis, slip op. at 3, __ F.3d at __ (per curiam). The Second Circuit, stating that the Fourth Circuit's reasoning in Divens applies “with equal force” to the defendant's request for an evidentiary hearing on sentencing issues, held that the government may not withhold a § 3E1.1 motion based upon such a request. See United States v. Lee, 653 F.3d 170, 175 (2d Cir. 2011).

The PROTECT Act added Commentary to § 3E1.1 stating that “[b]ecause the Government is in the best position to determine whether the defendant has assisted authorities in a manner that avoids preparing for trial, an adjustment under subsection (b) may only be granted upon a formal motion by the Government at the time of sentencing.”See§ 3E1.1, comment. (n.6). The PROTECT Act also amended § 3E1.1(b) to provide that the government motion state, among other things, that the defendant's notification of his intention to enter a plea of guilty permitted “the government to avoid preparing for trial and . . . the government and the court to allocate their resources efficiently . . .”.

In its study of the PROTECT Act, the Commission could discern no congressional intent to allow decisions under § 3E1.1 to be based on interests not identified in § 3E1.1. Furthermore, consistent with Divens and the concurrence in Davis, the Commission determined that the defendant's waiver of his or her right to appeal is an example of an interest not identified in § 3E1.1. Accordingly, this amendment adds an additional sentence to the Commentary stating that “[t]he government should not withhold such a motion based on interests not identified in § 3E1.1, such as whether the defendant agrees to waive his or her right to appeal.”

The Court's Discretion to Deny the Motion Back to Top

The second conflict involves the court's discretion under subsection (b) and, in particular, whether the court may decline to apply the third level of reduction when the government has moved for it.

The Seventh Circuit has held that if the government makes the motion (and the other two requirements of subsection (b) are met, i.e., the defendant qualifies for the 2-level decrease and the offense level is level 16 or greater), the third level of reduction must be awarded. See United States v. Mount, 675 F.3d 1052 (7th Cir. 2012).

In contrast, the Fifth Circuit has held that the district court retains discretion to deny the motion. See United States v. Williamson, 598 F.3d 227, 230 (5th Cir. 2010). In Williamson, the defendant was convicted after jury trial but successfully appealed. After remand, he pled guilty to a lesser offense. The government moved for the third level of reduction, but the court declined to grant it because “regardless of however much additional trial preparation the government avoided through Williamson's guilty plea following remand, the preparation for the initial trial and the use of the court's resources for that trial meant that the § 3E1.1(b) benefits to the government and the court were not obtained”. Id. at 231. The Fifth Circuit affirmed, holding that the decision whether to grant the third level of reduction “is the district court's—not the government's—even though the court may only do so on the government's motion”. Id. at 230.

This amendment amends the Commentary to § 3E1.1 by adding the following statement: “If the government files such a motion, and the court in deciding whether to grant the motion also determines 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, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, the court should grant the motion.”

In its study of the PROTECT Act, the Commission could discern no congressional intent to take away from the court its responsibility under § 3E1.1 to make its own determination of whether the conditions were met. In particular, both the language added to the Commentary by the PROTECT Act and the legislative history of the PROTECT Act speak in terms of allowing the court discretion to “grant” the third level of reduction. See USSG § 3E1.1, comment. (n.6) (stating that the third level of reduction “may only be granted upon a formal motion by the Government”); H.R. Rep. No. 108-66, at 59 (2003) (Conf. Rep.) (stating that the PROTECT Act amendment would “only allow courts to grant an additional third point reduction for `acceptance of responsibility' upon motion of the government.”). In addition, the Commission observes that one of the considerations in § 3E1.1(b) is whether the defendant's actions permitted the court to allocate its resources efficiently, and the court is in the best position to make that determination. Accordingly, consistent with congressional intent, this amendment recognizes that the court continues to have discretion to decide whether to grant the third level of reduction.

Finally, and as mentioned above, the Commission in its study of the PROTECT Act could discern no congressional intent to allow decisions under § 3E1.1 to be based on interests not identified in § 3E1.1. For that reason, this amendment indicates that, if the government has filed the motion and the court also determines that the circumstances identified in § 3E1.1 are present, the court should grant the motion.

6. Amendment: The Commentary to § 5G1.3 captioned “Background” is amended by striking “In a case in which” and all that follows through “Exercise of that authority,” and inserting “Federal courts generally `have discretion to select whether the sentences they impose will run concurrently or consecutively with respect to other sentences that they impose, or that have been imposed in other proceedings, including state proceedings.'See Setser v. United States, 132 S. Ct. 1463, 1468 (2012); 18 U.S.C. § 3584(a). Federal courts also generally have discretion to order that the sentences they impose will run concurrently with or consecutively to other state sentences that are anticipated but not yet imposed. See Setser, 132 S. Ct. at 1468. Exercise of that discretion”.

Reason for Amendment: This amendment responds to a recent Supreme Court decision that federal courts have discretion to order that the sentence run consecutively to (or concurrently with) an anticipated, but not yet imposed, state sentence. See Setser v. United States, 132 S. Ct. 1463, 1468 (2012).

The discretion recognized in Setser for anticipated state sentences is similar to the discretion that federal courts have under 18 U.S.C. § 3584 for previously imposed sentences. Under section 3584, a federal court imposing a sentence generally has discretion to order that the sentence run consecutively to (or, in the alternative, concurrently with) a term of imprisonment previously imposed but not yet discharged. See 18 U.S.C. § 3584(a). Section 5G1.3 (Imposition of a Sentence on a Defendant Subject to an Undischarged Term of Imprisonment) provides guidance to the court in determining whether, and how, to use the discretion under section 3584, i.e., whether the sentence should run consecutively to (or, in the alternative, concurrently with) the prior undischarged term of imprisonment.

The amendment amends the background commentary to § 5G1.3 to include a statement that, in addition to the discretion provided by section 3584, federal courts also generally have discretion under Setser to order that the sentences they impose will run consecutively to or concurrently with other state sentences that are anticipated but not yet imposed. Determining whether, and how, to use this discretion will depend on the adequacy of the information available. See Setser, 132 S.Ct. at 1471 n.6 (“Of course, a district court should exercise the power to impose anticipatory consecutive (or concurrent) sentences intelligently. In some situations, a district court may have inadequate information and may forbear, but in other situations, that will not be the case.”). Adding this statement to the guideline that applies to the court's discretion under section 3584 is intended to provide heightened awareness of the court's similar discretion under Setser.

7. Amendment: The Commentary to § 2B1.1 captioned “Application Notes” is amended in Note 15 (as renumbered by Amendment 2) by striking “1a(5)” both places it appears and inserting “1a(11)”; by striking “1a(6)” both places it appears and inserting “1a(12)”; by striking “1a(20)” both places it appears and inserting “1a(28)”; and by striking “1a(23)” both places it appears and inserting “1a(31)”.

Section 2B2.3(b) is amended by striking paragraph (1) and inserting the following:

“(1) (Apply the greater) If—

(A) the trespass occurred (i) at a secure government facility; (ii) at a nuclear energy facility; (iii) on a vessel or aircraft of the United States; (iv) in a secure area of an airport or a seaport; (v) at a residence; (vi) at Arlington National Cemetery or a cemetery under the control of the National Cemetery Administration; (vii) at any restricted building or grounds; or (viii) on a computer system used (I) to maintain or operate a critical infrastructure; or (II) by or for a government entity in furtherance of the administration of justice, national defense, or national security, increase by 2 levels; or

(B) the trespass occurred at the White House or its grounds, or the Vice President's official residence or its grounds, increase by 4 levels.”.

The Commentary to § 2B2.3 captioned “Application Notes” is amended in Note 1 by inserting after the paragraph that begins “ `Protected computer' means” the following:

“ `Restricted building or grounds' has the meaning given that term in 18 U.S.C. § 1752.”; and in Note 2 by inserting “Application of Subsection (b)(3).—” at the beginning.

The Notes to the Drug Quantity Table in § 2D1.1(c) are amended in each of Notes (H) and (I) by striking “1308.11(d)(30)” and inserting “1308.11(d)(31)”.

The Commentary to § 2J1.2 captioned “Application Notes” is amended in Note 2(A) by striking “Chapter Three, Part C” in the heading and inserting “§ 3C1.1”; and by striking “Chapter Three, Part C (Obstruction and Related Adjustments)” and inserting “§ 3C1.1 (Obstructing or Impeding the Administration of Justice)”.

The Commentary to § 2J1.3 captioned “Application Notes” is amended in Note 2 by striking “Chapter Three, Part C (Obstruction and Related Adjustments)” and inserting “§ 3C1.1 (Obstructing or Impeding the Administration of Justice)”; and in Note 3 by striking “Chapter Three, Part C (Obstruction and Related Adjustments)” and inserting “§ 3C1.1”.

The Commentary to § 2J1.6 captioned “Application Notes” is amended in Note 2 by striking “Chapter Three, Part C (Obstruction and Related Adjustments)” and inserting “§ 3C1.1 (Obstructing or Impeding the Administration of Justice)”.

The Commentary to § 2J1.9 captioned “Application Notes” is amended in Note 1 by striking “Chapter Three, Part C (Obstruction and Related Adjustments)” and inserting “§ 3C1.1 (Obstructing or Impeding the Administration of Justice)”; and in Note 2 by striking “Chapter Three, Part C (Obstruction and Related Adjustments)” and inserting “§ 3C1.1”.

The Commentary to § 4A1.1 captioned “Application Notes” is amended in each of Notes 2 and 3 by striking “court martial” and inserting “court-martial”.

Section 4A1.2(g) is amended by striking “court martial” both places it appears and inserting “court-martial”.

Appendix A (Statutory Index) is amended by inserting after the line referenced to 18 U.S.C. § 38 the following:

“18 U.S.C. § 39A 2A5.2”; in the line referenced to 18 U.S.C. § 554 by inserting “2M5.1,” after “2B1.5,”; by inserting after the line referenced to 18 U.S.C. § 1513 the following:

“18 U.S.C. § 1514(c) 2J1.2”; by inserting after the line referenced to 18 U.S.C. § 1751(e) the following:

“18 U.S.C. § 1752 2A2.4, 2B2.3”; and by inserting after the line referenced to 19 U.S.C. § 1586(e) the following:

“19 U.S.C. § 1590(d)(1) 2T3.1

19 U.S.C. § 1590(d)(2) 2D1.1”.

Reason for Amendment: This amendment responds to recently enacted legislation and miscellaneous and technical guideline issues.

Aiming a Laser Pointer at an Aircraft Back to Top

First, the amendment responds to Section 311 of the FAA Modernization and Reform Act of 2012, Public Law 112-95 (enacted February 14, 2012), which established a new criminal offense at 18 U.S.C. 39A (Aiming a laser pointer at an aircraft). The offense applies to whoever knowingly aims the beam of a laser pointer at an aircraft in the special aircraft jurisdiction of the United States or at the flight path of such an aircraft. The statutory maximum term of imprisonment is five years.

The amendment amends Appendix A (Statutory Index) to reference section 39A offenses to § 2A5.2 (Interference with Flight Crew Member or Flight Attendant; Interference with Dispatch, Navigation, Operation, or Maintenance of Mass Transportation Vehicle). Section 2A5.2 is the most analogous guideline because the offense involves interference with an aircraft in flight.

Restraining the Harassment of a Victim or Witness Back to Top

Second, the amendment responds to section 3(a) of the Child Protection Act of 2012, Public Law 112-206 (enacted December 7, 2012), which established a new offense at 18 U.S.C. 1514(c) that makes it a criminal offense to knowingly and intentionally violate or attempt to violate an order issued under section 1514 (Civil action to restrain harassment of a victim or witness). The new offense has a statutory maximum term of imprisonment of five years.

The amendment amends Appendix A (Statutory Index) to reference section 1514(c) offenses to § 2J1.2 (Obstruction of Justice). Section 2J1.2 is the most analogous guideline because the offense involves interference with judicial proceedings.

Restricted Buildings and Grounds Back to Top

Third, the amendment responds to the Federal Restricted Buildings and Grounds Improvement Act of 2011, Public Law 112-98 (enacted March 8, 2012), which amended the criminal offense at 18 U.S.C. § 1752 (Restricted building or grounds). As so amended, the statute defines “restricted buildings or grounds” to mean any restricted area (A) of the White House or its grounds, or the Vice President's official residence or its grounds; (B) of a building or grounds where the President or other person protected by the United States Secret Service is or will be temporarily visiting; or (C) of a building or grounds restricted in conjunction with an event designated as a special event of national significance. The statute makes it a crime to enter or remain; to impede or disrupt the orderly conduct of business or official functions; to obstruct or impede ingress or egress; or to engage in any physical violence against any person or property. The Act did not change the statutory maximum term of imprisonment, which is ten years if the person used or carried a deadly or dangerous weapon or firearm or if the offense results in significant bodily injury, and one year in any other case.

The amendment amends Appendix A (Statutory Index) to reference section 1752 offenses to § 2A2.4 (Obstructing or Impeding Officers) and § 2B2.3 (Trespass). These guidelines are most analogous because the elements of offenses under section 1752 involve either trespass at certain locations (i.e., locations permanently or temporarily protected by the Secret Service) or interference with official business at such locations, or both.

The amendment also amends § 2B2.3(b)(1) to ensure that a trespass under section 1752 provides a 4-level enhancement if the trespass occurred at the White House or the Vice President's official residence, or a 2-level enhancement if the trespass occurred at any other location permanently or temporarily protected by the Secret Service. Section 2B2.3(b)(1) provides a 2-level enhancement if the trespass occurred at locations that involve a significant federal interest, such as nuclear facilities, airports, and seaports. A trespass at a location protected by the Secret Service is no less serious than a trespass at other locations that involve a significant federal interest and warrants an equivalent enhancement of 2 levels. Section 2B2.3(b)(1) also provides a 2-level enhancement if the trespass occurred at a residence. A trespass at the residence of the President or the Vice President is more serious and poses a greater risk of harm than a trespass at an ordinary residence and warrants an enhancement of 4 levels.

Aviation Smuggling Back to Top

Fourth, the amendment responds to the Ultralight Aircraft Smuggling Prevention Act of 2012, Public Law 112-93 (enacted February 10, 2012), which amended the criminal offense at 19 U.S.C. § 1590 (Aviation smuggling) to clarify that the term “aircraft” includes ultralight aircraft and to cover attempts and conspiracies. Section 1590 makes it unlawful for the pilot of an aircraft to transport merchandise, or for any individual on board any aircraft to possess merchandise, knowing that the merchandise will be introduced into the United States contrary to law. It is also unlawful for a person to transfer merchandise between an aircraft and a vessel on the high seas or in the customs waters of the United States unlawfully. The Act did not change the statutory maximum terms of imprisonment, which are 20 years if any of the merchandise involved was a controlled substance, see§ 1590(d)(2), and five years otherwise, see§ 1590(d)(1). The amendment amends Appendix A (Statutory Index) to reference offenses under section 1590(d)(1) to § 2T3.1 (Evading Import Duties or Restrictions (Smuggling); Receiving or Trafficking in Smuggled Property). In such cases, § 2T3.1 is the most analogous guideline because the offense involves smuggling. The amendment also amends Appendix A (Statutory Index) to reference offenses under section 1590(d)(2) to § 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy). In such cases, § 2D1.1 is the most analogous guideline because controlled substances are involved in these offenses.

Interaction Between Offense Guidelines in Chapter Two, Part J, and Certain Adjustments in Chapter Three, Part C Back to Top

Fifth, the amendment responds to an application issue that may arise in cases in which the defendant is sentenced under an offense guideline in Chapter Two, Part J (Offenses Involving the Administration of Justice) and the defendant may also be subject to an adjustment under Chapter Three, Part C (Obstruction and Related Adjustments). Specifically, there are application notes in four Chapter Two, Part J guidelines that, it has been argued, preclude the court from applying adjustments in Chapter Three, Part C. See, e.g., United States v. Duong, 665 F.3d 364 (1st Cir. 2012) (observing that, “according to the literal terms” of the application notes, an adjustment under Chapter Three, Part C “ `does not apply' ”, but “reject[ing] that premise”).

The amendment amends the relevant application notes in Chapter Two, Part J (see§§ 2J1.2, comment. (n.2(A)); 2J1.3, comment. (n.2); 2J1.6, comment. (n.2); 2J1.9, comment. (n.1)) to clarify the Commission's intent that they restrict the court from applying § 3C1.1 (Obstructing or Impeding the Administration of Justice) but do not restrict the court from applying §§ 3C1.2, 3C1.3, and 3C1.4. These changes resolve the application issue consistent with Duong and promote clarity and consistency in the application of these adjustments.

Export Offenses Under 18 U.S.C. § 554 Back to Top

Sixth, the amendment broadens the range of guidelines to which export offenses under 18 U.S.C. § 554 (Smuggling goods from the United States) are referenced. Section 554 makes it unlawful to export or send from the United States (or attempt to do so) any merchandise, article, or object contrary to any law or regulation of the United States. It also makes it unlawful to receive, conceal, buy, sell, or in any manner facilitate the transportation, concealment, or sale of such merchandise, article, or object, prior to exportation, knowing the same to be intended for exportation contrary to any law or regulation of the United States. Offenses under section 554 have a statutory maximum term of imprisonment of ten years, and they are referenced in Appendix A (Statutory Index) to three guidelines: §§ 2B1.5 (Theft of, Damage to, or Destruction of, Cultural Heritage Resources or Paleontological Resources; Unlawful Sale, Purchase, Exchange, Transportation, or Receipt of Cultural Heritage Resources or Paleontological Resources), 2M5.2 (Exportation of Arms, Munitions, or Military Equipment or Services Without Required Validated Export License), and 2Q2.1 (Offenses Involving Fish, Wildlife, and Plants).

The amendment amends Appendix A (Statutory Index) to add § 2M5.1 (Evasion of Export Controls; Financial Transactions with Countries Supporting International Terrorism) to the list of guidelines to which offenses under section 554 are referenced. Not all offenses under section 554 involve munitions, cultural resources, or wildlife, so a reference to an additional guideline is warranted. For example, a section 554 offense may be based on the export of ordinary commercial goods in violation of economic sanctions or on the export of “dual-use” goods (i.e., goods that have both commercial and military applications). For such cases, the additional reference to § 2M5.1 promotes clarity and consistency in guideline application, and the penalty structure of § 2M5.1 provides appropriate distinctions between offenses that violate national security controls and offenses that do not.

Technical and Stylistic Changes Back to Top

Finally, the amendment makes certain technical and stylistic changes to the Guidelines Manual. First, it amends the Commentary to § 2B1.1 (Theft, Property Destruction, and Fraud) to provide updated references to the definitions contained in 7 U.S.C. 1a, which were renumbered by Public Law 111B203 (enacted July 21, 2010). Second, it amends the Notes to the Drug Quantity Table in § 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) to provide updated references to the definition of tetrahydrocannabinols contained in 21 CFR 1308.11(d), which were renumbered by 75 FR 79296 (December 20, 2010). Third, it makes several stylistic revisions in the Guidelines Manual to change “court martial” to “court-martial”. The changes are not substantive.

[FR Doc. 2013-10678 Filed 5-3-13; 8:45 am]

BILLING CODE 2210-40-P

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