1995 Guidelines Manual

Chapter Two - PART A - OFFENSES AGAINST THE PERSON

1. HOMICIDE

2A1.1.First Degree Murder

(a)Base Offense Level: 43

Commentary

Statutory Provisions: 18 U.S.C. 1111, 2113(e), 2118(c)(2); 21 U.S.C. 848(e). For additional statutory provision(s), see Appendix A (Statutory Index).

Application Notes:

1.The Commission has concluded that in the absence of capital punishment life imprisonment is the appropriate punishment for premeditated killing. However, this guideline also applies when death results from the commission of certain felonies. Life imprisonment is not necessarily appropriate in all such situations. For example, if in robbing a bank, the defendant merely passed a note to the teller, as a result of which she had a heart attack and died, a sentence of life imprisonment clearly would not be appropriate.

If the defendant did not cause the death intentionally or knowingly, a downward departure may be warranted. The extent of the departure should be based upon the defendant's state of mind (e.g., recklessness or negligence), the degree of risk inherent in the conduct, and the nature of the underlying offense conduct. However, the Commission does not envision that departure below that specified in 2A1.2 (Second Degree Murder) is likely to be appropriate. Also, because death obviously is an aggravating factor, 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.

2.If the defendant is convicted under 21 U.S.C. 848(e), a sentence of death may be imposed under the specific provisions contained in that statute. This guideline applies when a sentence of death is not imposed.

Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendment 82); November 1, 1990 (see Appendix C, amendment 310); November 1, 1993 (see Appendix C, amendment 476).

2A1.2.Second Degree Murder

(a)Base Offense Level: 33

Commentary

Statutory Provision: 18 U.S.C. 1111. For additional statutory provision(s), see Appendix A (Statutory Index).

Background: The maximum term of imprisonment authorized by statute for second degree murder is life.

Historical Note: Effective November 1, 1987.

2A1.3.Voluntary Manslaughter

(a)Base Offense Level: 25

Commentary

Statutory Provision: 18 U.S.C. 1112. For additional statutory provision(s), see Appendix A (Statutory Index).

Background: The maximum term of imprisonment authorized by statute for voluntary manslaughter is ten years.

Historical Note: Effective November 1, 1987.

2A1.4.Involuntary Manslaughter

(a)Base Offense Level:

(1)10, if the conduct was criminally negligent; or

(2)14, if the conduct was reckless.

Commentary

Statutory Provision: 18 U.S.C. 1112. For additional statutory provision(s), see Appendix A (Statutory Index).

Application Notes:

1."Reckless" refers to 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. The term thus includes all, or nearly all, convictions for involuntary manslaughter under 18 U.S.C. 1112. A homicide resulting from driving, or similarly dangerous actions, while under the influence of alcohol or drugs ordinarily should be treated as reckless.

2."Criminally negligent" refers to conduct that involves a gross deviation from the standard of care that a reasonable person would exercise under the circumstances, but which is not reckless. Offenses with this characteristic usually will be encountered as assimilative crimes.

Historical Note: Effective November 1, 1987.

2A1.5.Conspiracy or Solicitation to Commit Murder

(a)Base Offense Level: 28

(b)Specific Offense Characteristic

(1)If the offense involved the offer or the receipt of anything of pecuniary value for undertaking the murder, increase by 4 levels.

(c)Cross References

(1)If the offense resulted in the death of a victim, apply 2A1.1 (First Degree Murder).

(2)If the offense resulted in an attempted murder or assault with intent to commit murder, apply 2A2.1 (Assault With Intent to Commit Murder; Attempted Murder).

Commentary

Statutory Provisions: 18 U.S.C. 351(d), 371, 373, 1117, 1751(d).

Historical Note: Effective November 1, 1990 (see Appendix C, amendment 311).

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2. ASSAULT

2A2.1.Assault With Intent to Commit Murder; Attempted Murder

(a)Base Offense Level:

(1)28, if the object of the offense would have constituted first degree murder; or

(2)22, otherwise.

(b)Specific Offense Characteristics

(1)(A) If the victim sustained permanent or life-threatening bodily injury, increase by 4 levels; (B) if the victim sustained serious bodily injury, increase by 2 levels; or (C) if the degree of injury is between that specified in subdivisions (A) and (B), increase by 3 levels.

(2)If the offense involved the offer or the receipt of anything of pecuniary value for undertaking the murder, increase by 4 levels.

Commentary

Statutory Provisions: 18 U.S.C. 113(a)(1), 351(c), 1113, 1116(a), 1751(c). For additional statutory provision(s), see Appendix A (Statutory Index).

Application Notes:

1.Definitions of "serious bodily injury" and "permanent or life-threatening bodily injury" are found in the Commentary to 1B1.1 (Application Instructions).

2."First degree murder," as used in subsection (a)(1), means conduct that, if committed within the special maritime and territorial jurisdiction of the United States, would constitute first degree murder under 18 U.S.C. 1111.

3.If the offense created a substantial risk of death or serious bodily injury to more than one person, an upward departure may be warranted.

Background: This section applies to the offenses of assault with intent to commit murder and attempted murder. An attempted manslaughter, or assault with intent to commit manslaughter, is covered under 2A2.2 (Aggravated Assault).

Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendments 83 and 84); November 1, 1990 (see Appendix C, amendment 311); November 1, 1991 (see Appendix C, amendment 391); November 1, 1995 (see Appendix C, amendment 534).

2A2.2.Aggravated Assault

(a)Base Offense Level: 15

(b)Specific Offense Characteristics

(1)If the assault involved more than minimal planning, increase by 2 levels.

(2)(A) If a firearm was discharged, increase by 5 levels; (B) if a dangerous weapon (including a firearm) was otherwise used, increase by 4 levels; (C) if a dangerous weapon (including a firearm) was brandished or its use was threatened, increase by 3 levels.

(3)If the victim sustained bodily injury, increase the offense level according to the seriousness of the injury:

Degree of Bodily InjuryIncrease in Level

(A) Bodily Injury add 2

(B) Serious Bodily Injury add 4

(C) Permanent or Life-Threatening

Bodily Injury add 6

(D)If the degree of injury is between that specified in subdivisions (A) and (B), add 3 levels; or

(E)If the degree of injury is between that specified in subdivisions (B) and (C), add 5 levels.

Provided, however, that the cumulative adjustments from (2) and (3) shall not exceed 9 levels.

(4)If the assault was motivated by a payment or offer of money or other thing of value, increase by 2 levels.

Commentary

Statutory Provisions: 18 U.S.C. 111, 112, 113(a)(2), (3), (6), 114, 115(a), (b)(1), 351(e), 1751(e). For additional statutory provision(s), see Appendix A (Statutory Index).

Application Notes:

1."Aggravated assault" means a felonious assault that involved (a) a dangerous weapon with intent to do bodily harm (i.e., not merely to frighten), or (b) serious bodily injury, or (c) an intent to commit another felony.

2.Definitions of "more than minimal planning," "firearm," "dangerous weapon," "brandished," "otherwise used," "bodily injury," "serious bodily injury," and "permanent or life-threatening bodily injury," are found in the Commentary to 1B1.1 (Application Instructions).

3.This guideline also covers attempted manslaughter and assault with intent to commit manslaughter. Assault with intent to commit murder is covered by 2A2.1. Assault with intent to commit rape is covered by 2A3.1.

Background: This section applies to serious (aggravated) assaults. Such offenses occasionally may involve planning or be committed for hire. Consequently, the structure follows 2A2.1.

There are a number of federal provisions that address varying degrees of assault and battery. The punishments under these statutes differ considerably, even among provisions directed to substantially similar conduct. For example, if the assault is upon certain federal officers "while engaged in or on account of . . . official duties," the maximum term of imprisonment under 18 U.S.C. 111 is three years. If a dangerous weapon is used in the assault on a federal officer, the maximum term of imprisonment is ten years. However, if the same weapon is used to assault a person not otherwise specifically protected, the maximum term of imprisonment under 18 U.S.C. 113(c) is five years. If the assault results in serious bodily injury, the maximum term of imprisonment under 18 U.S.C. 113(f) is ten years, unless the injury constitutes maiming by scalding, corrosive, or caustic substances under 18 U.S.C. 114, in which case the maximum term of imprisonment is twenty years.

Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendments 85 and 86); November 1, 1990 (see Appendix C, amendment 311); November 1, 1995 (see Appendix C, amendment 534).

2A2.3.Minor Assault

(a)Base Offense Level:

(1)6, if the conduct involved physical contact, or if a dangerous weapon (including a firearm) was possessed and its use was threatened; or

(2)3, otherwise.

(b)Specific Offense Characteristic

(1)If the offense resulted in substantial bodily injury to an individual under the age of sixteen years, increase by 4 levels.

Commentary

Statutory Provisions: 18 U.S.C. 112, 115(a), 115(b)(1), 351(e), 1751(e). For additional statutory provision(s), see Appendix A (Statutory Index).

Application Notes:

1."Minor assault" means a misdemeanor assault, or a felonious assault not covered by 2A2.2.

2.Definitions of "firearm" and "dangerous weapon" are found in the Commentary to 1B1.1 (Application Instructions).

3."Substantial bodily injury" means "bodily injury which involves - (A) a temporary but substantial disfigurement; or (B) a temporary but substantial loss or impairment of the function of any bodily member, organ, or mental faculty." 18 U.S.C. 113(b)(1).

Background: Minor assault and battery are covered in this section.

Historical Note: Effective November 1, 1987. Amended effective October 15, 1988 (see Appendix C, amendment 64); November 1, 1989 (see Appendix C, amendments 87 and 88); November 1, 1995 (see Appendix C, amendment 510).

2A2.4.Obstructing or Impeding Officers

(a)Base Offense Level: 6

(b)Specific Offense Characteristic

(1)If the conduct involved physical contact, or if a dangerous weapon (including a firearm) was possessed and its use was threatened, increase by 3 levels.

(c)Cross Reference

(1)If the conduct constituted aggravated assault, apply 2A2.2 (Aggravated Assault).

Commentary

Statutory Provisions: 18 U.S.C. 111, 1501, 1502, 3056(d). For additional statutory provision(s), see Appendix A (Statutory Index).

Application Notes:

1.The base offense level reflects the fact that the victim was a governmental officer performing official duties. Therefore, do not apply 3A1.2 (Official Victim) unless subsection (c) requires the offense level to be determined under 2A2.2 (Aggravated Assault).

2.Definitions of "firearm" and "dangerous weapon" are found in the Commentary to 1B1.1 (Application Instructions).

3.The base offense level does not assume any significant disruption of governmental functions. In situations involving such disruption, an upward departure may be warranted. See 5K2.7 (Disruption of Governmental Function).

Background: Violations of 18 U.S.C. 1501, 1502, and 3056(d) are misdemeanors; violation of 18 U.S.C. 111 is a felony. The guideline has been drafted to provide offense levels that are identical to those otherwise provided for assaults involving an official victim; when no assault is involved, the offense level is 6.

Historical Note: Effective October 15, 1988 (see Appendix C, amendment 64). Amended effective November 1, 1989 (see Appendix C, amendments 89 and 90); November 1, 1992 (see Appendix C, amendment 443).

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3.CRIMINAL SEXUAL ABUSE

2A3.1.Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse

(a)Base Offense Level: 27

(b)Specific Offense Characteristics

(1)If the offense was committed by the means set forth in 18 U.S.C. 2241(a) or (b) (including, but not limited to, the use or display of any dangerous weapon), increase by 4 levels.

(2)(A) If the victim had not attained the age of twelve years, increase by 4 levels; or (B) if the victim had attained the age of twelve years but had not attained the age of sixteen years, increase by 2 levels.

(3)If the victim was (A) in the custody, care, or supervisory control of the defendant; or (B) a person held in the custody of a correctional facility, increase by 2 levels.

(4)(A) If the victim sustained permanent or life-threatening bodily injury, increase by 4 levels; (B) if the victim sustained serious bodily injury, increase by 2 levels; or (C) if the degree of injury is between that specified in subdivisions (A) and (B), increase by 3 levels.

(5)If the victim was abducted, increase by 4 levels.

(c)Cross Reference

(1)If a victim was killed under circumstances that would constitute murder under 18 U.S.C. 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States, apply 2A1.1 (First Degree Murder).

(d)Special Instruction

(1)If the offense occurred in a correctional facility and the victim was a corrections employee, the offense shall be deemed to have an official victim for purposes of subsection (a) of 3A1.2 (Official Victim).

Commentary

Statutory Provisions: 18 U.S.C. 2241, 2242. For additional statutory provision(s), see Appendix A (Statutory Index).

Application Notes:

1."Permanent or life-threatening bodily injury," "serious bodily injury," and "abducted" are defined in the Commentary to 1B1.1 (Application Instructions).

2."The means set forth in 18 U.S.C. 2241(a) or (b)" are: by using force against the victim; by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury, or kidnapping; by rendering the victim unconscious; or by administering by force or threat of force, or without the knowledge or permission of the victim, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of the victim to appraise or control conduct. This provision would apply, for example, where any dangerous weapon was used, brandished, or displayed to intimidate the victim.

3.Subsection (b)(3), as it pertains to a victim in the custody, care, or supervisory control of the defendant, is intended to have broad application and is to be applied whenever the victim is entrusted to the defendant, whether temporarily or permanently. For example, teachers, day care providers, baby-sitters, or other temporary caretakers are among those who would be subject to this enhancement. In determining whether to apply this enhancement, the court should look to the actual relationship that existed between the defendant and the victim and not simply to the legal status of the defendant-victim relationship.

4.If the adjustment in subsection (b)(3) applies, do not apply 3B1.3 (Abuse of Position of Trust or Use of Special Skill).

5.If the defendant was convicted (A) of more than one act of criminal sexual abuse and the counts are grouped under 3D1.2 (Groups of Closely Related Counts), or (B) of only one such act but the court determines that the offense involved multiple acts of criminal sexual abuse of the same victim or different victims, an upward departure would be warranted.

6.If a victim was sexually abused by more than one participant, an upward departure may be warranted. See 5K2.8 (Extreme Conduct).

7.If the defendant's criminal history includes a prior sentence for conduct that is similar to the instant offense, an upward departure may be warranted.

Background: Sexual offenses addressed in this section are crimes of violence. Because of their dangerousness, attempts are treated the same as completed acts of criminal sexual abuse. The maximum term of imprisonment authorized by statute is life imprisonment. The base offense level represents sexual abuse as set forth in 18 U.S.C. 2242. An enhancement is provided for use of force; threat of death, serious bodily injury, or kidnapping; or certain other means as defined in 18 U.S.C. 2241. This includes any use or threatened use of a dangerous weapon.

An enhancement is provided when the victim is less than sixteen years of age. An additional enhancement is provided where the victim is less than twelve years of age. Any criminal sexual abuse with a child less than twelve years of age, regardless of "consent," is governed by 2A3.1.

An enhancement for a custodial relationship between defendant and victim is also provided. Whether the custodial relationship is temporary or permanent, the defendant in such a case is a person the victim trusts or to whom the victim is entrusted. This represents the potential for greater and prolonged psychological damage. Also, an enhancement is provided where the victim was an inmate of, or a person employed in, a correctional facility. Finally, enhancements are provided for permanent, life-threatening, or serious bodily injury and abduction.

Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendments 91 and 92); November 1, 1991 (see Appendix C, amendment 392); November 1, 1992 (see Appendix C, amendment 444); November 1, 1993 (see Appendix C, amendment 477); November 1, 1995 (see Appendix C, amendment 511).

2A3.2.Criminal Sexual Abuse of a Minor (Statutory Rape) or Attempt to Commit Such Acts

(a)Base Offense Level: 15

(b)Specific Offense Characteristic

(1)If the victim was in the custody, care, or supervisory control of the defendant, increase by 2 levels.

(c)Cross Reference

(1)If the offense involved criminal sexual abuse or attempt to commit criminal sexual abuse (as defined in 18 U.S.C. 2241 or 2242), apply 2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse).

Commentary

Statutory Provision: 18 U.S.C. 2243(a). For additional statutory provision(s), see Appendix A (Statutory Index).

Application Notes:

1.If the defendant committed the criminal sexual act in furtherance of a commercial scheme such as pandering, transporting persons for the purpose of prostitution, or the production of pornography, an upward departure may be warranted. See Chapter Five, Part K (Departures).

2.Subsection (b)(1) is intended to have broad application and is to be applied whenever the victim is entrusted to the defendant, whether temporarily or permanently. For example, teachers, day care providers, baby-sitters, or other temporary caretakers are among those who would be subject to this enhancement. In determining whether to apply this enhancement, the court should look to the actual relationship that existed between the defendant and the victim and not simply to the legal status of the defendant-victim relationship.

3.If the adjustment in subsection (b)(1) applies, do not apply 3B1.3 (Abuse of Position of Trust or Use of Special Skill).

4.If the defendant's criminal history includes a prior sentence for conduct that is similar to the instant offense, an upward departure may be warranted.

Background: This section applies to sexual acts that would be lawful but for the age of the victim. It is assumed that at least a four-year age difference exists between the victim and the defendant, as specified in 18 U.S.C. 2243(a). An enhancement is provided for a defendant who victimizes a minor under his supervision or care.

Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendment 93); November 1, 1991 (see Appendix C, amendment 392); November 1, 1992 (see Appendix C, amendment 444); November 1, 1995 (see Appendix C, amendment 511).

2A3.3.Criminal Sexual Abuse of a Ward or Attempt to Commit Such Acts

(a)Base Offense Level: 9

Commentary

Statutory Provision: 18 U.S.C. 2243(b). For additional statutory provision(s), see Appendix A (Statutory Index).

Application Notes:

1.A ward is a person in official detention under the custodial, supervisory, or disciplinary authority of the defendant.

2.If the defendant's criminal history includes a prior sentence for conduct that is similar to the instant offense, an upward departure may be warranted.

Background: The offense covered by this section is a misdemeanor. The maximum term of imprisonment authorized by statute is one year.

Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendment 94); November 1, 1995 (see Appendix C, amendment 511).

2A3.4.Abusive Sexual Contact or Attempt to Commit Abusive Sexual Contact

(a)Base Offense Level:

(1)16, if the offense was committed by the means set forth in 18 U.S.C. 2241(a) or (b);

(2)12, if the offense was committed by the means set forth in 18 U.S.C. 2242;

(3)10, otherwise.

(b)Specific Offense Characteristics

(1)If the victim had not attained the age of twelve years, increase by 4 levels; but if the resulting offense level is less than 16, increase to level 16.

(2)If the base offense level is determined under subsection (a)(1) or (2), and the victim had attained the age of twelve years but had not attained the age of sixteen years, increase by 2 levels.

(3)If the victim was in the custody, care, or supervisory control of the defendant, increase by 2 levels.

(c)Cross References

(1)If the offense involved criminal sexual abuse or attempt to commit criminal sexual abuse (as defined in 18 U.S.C. 2241 or 2242), apply 2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse).

(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.S.C. 2243(a)), apply 2A3.2 (Criminal Sexual Abuse of a Minor or Attempt to Commit Such Acts), if the resulting offense level is greater than that determined above.

Commentary

Statutory Provisions: 18 U.S.C. 2244(a)(1),(2),(3). For additional statutory provision(s), see Appendix A (Statutory Index).

Application Notes:

1."The means set forth in 18 U.S.C. 2241(a) or (b)" are by using force against the victim; by threatening or placing the victim in fear that any person will be subjected to death, serious bodily injury, or kidnapping; by rendering the victim unconscious; or by administering by force or threat of force, or without the knowledge or permission of the victim, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of the victim to appraise or control conduct.

2."The means set forth in 18 U.S.C. 2242" are 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, serious bodily injury, or kidnapping); or by victimizing an individual who is incapable of appraising the nature of the conduct or physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act.

3.Subsection (b)(3) is intended to have broad application and is to be applied whenever the victim is entrusted to the defendant, whether temporarily or permanently. For example, teachers, day care providers, baby-sitters, or other temporary caretakers are among those who would be subject to this enhancement. In determining whether to apply this enhancement, the court should look to the actual relationship that existed between the defendant and the victim and not simply to the legal status of the defendant-victim relationship.

4.If the adjustment in subsection (b)(3) applies, do not apply 3B1.3 (Abuse of Position of Trust or Use of Special Skill).

5.If the defendant's criminal history includes a prior sentence for conduct that is similar to the instant offense, an upward departure may be warranted.

Background: This section covers abusive sexual contact not amounting to criminal sexual abuse (criminal sexual abuse is covered under 2A3.1-3.3). Alternative base offense levels are provided to take account of the different means used to commit the offense. Enhancements are provided for victimizing children or minors. The enhancement under subsection (b)(2) does not apply, however, where the base offense level is determined under subsection (a)(3) because an element of the offense to which that offense level applies is that the victim had attained the age of twelve years but had not attained the age of sixteen years. For cases involving consensual sexual contact involving victims that have achieved the age of 12 but are under age 16, the offense level assumes a substantial difference in sexual experience between the defendant and the victim. If the defendant and the victim are similar in sexual experience, a downward departure may be warranted. For such cases, the Commission recommends a downward departure to the equivalent of an offense level of 6.

Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendment 95); November 1, 1991 (see Appendix C, amendment 392); November 1, 1992 (see Appendix C, amendment 444); November 1, 1995 (see Appendix C, amendment 511).

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4.KIDNAPPING, ABDUCTION, OR UNLAWFUL RESTRAINT

2A4.1.Kidnapping, Abduction, Unlawful Restraint

(a)Base Offense Level: 24

(b)Specific Offense Characteristics

(1)If a ransom demand or a demand upon government was made, increase by 6 levels.

(2)(A) If the victim sustained permanent or life-threatening bodily injury, increase by 4 levels; (B) if the victim sustained serious bodily injury, increase by 2 levels; or (C) if the degree of injury is between that specified in subdivisions (A) and (B), increase by 3 levels.

(3)If a dangerous weapon was used, increase by 2 levels.

(4)(A)If the victim was not released before thirty days had elapsed, increase by 2 levels.

(B)If the victim was not released before seven days had elapsed, increase by 1 level.

(C)If the victim was released before twenty-four hours had elapsed, decrease by 1 level.

(5)If the victim was sexually exploited, increase by 3 levels.

(6)If the victim is a minor and, in exchange for money or other consideration, was placed in the care or custody of another person who had no legal right to such care or custody of the victim, increase by 3 levels.

(7)If the victim was kidnapped, abducted, or unlawfully restrained during the commission of, or in connection with, another offense or escape therefrom; or if another offense was committed during the kidnapping, abduction, or unlawful restraint, increase to --

(A)the offense level from the Chapter Two offense guideline applicable to that other offense if such offense guideline includes an adjustment for kidnapping, abduction, or unlawful restraint, or otherwise takes such conduct into account; or

(B)4 plus the offense level from the offense guideline applicable to that other offense, but in no event greater than level 43, in any other case,

if the resulting offense level is greater than that determined above.

(c)Cross Reference

(1)If the victim was killed under circumstances that would constitute murder under 18 U.S.C. 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States, apply 2A1.1 (First Degree Murder).

Commentary

Statutory Provisions: 18 U.S.C. 115(b)(2), 351(b), (d), 1201, 1203, 1751(b). For additional statutory provision(s), see Appendix A (Statutory Index).

Application Notes:

1.Definitions of "serious bodily injury" and "permanent or life-threatening bodily injury" are found in the Commentary to 1B1.1 (Application Instructions).

2."A dangerous weapon was used" means that a firearm was discharged, or a "firearm" or "dangerous weapon" was "otherwise used" (as defined in the Commentary to 1B1.1 (Application Instructions)).

3.For the purpose of subsection (b)(4)(C), "released" includes allowing the victim to escape or turning him over to law enforcement authorities without resistance.

4."Sexually exploited" includes offenses set forth in 18 U.S.C. 2241-2244, 2251, and 2421-2423.

5.In the case of a conspiracy, attempt, or solicitation to kidnap, 2X1.1 (Attempt, Solicitation, or Conspiracy) requires that the court apply any adjustment that can be determined with reasonable certainty. Therefore, for example, if an offense involved conspiracy to kidnap for the purpose of committing murder, subsection (b)(7) would reference first degree murder (resulting in an offense level of 43, subject to a possible 3-level reduction under 2X1.1(b)). Similarly, for example, 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, the offense referenced under subsection (b)(7) would be the offense of first degree murder.

Background: Federal kidnapping cases generally encompass three categories of conduct: limited duration kidnapping where the victim is released unharmed; kidnapping that occurs as part of or to facilitate the commission of another offense (often, sexual assault); and kidnapping for ransom or political demand.

The guideline contains an adjustment for the length of time that the victim was detained. The adjustment recognizes the increased suffering involved in lengthy kidnappings and provides an incentive to release the victim.

An enhancement is provided when the offense is committed for ransom (subsection (b)(1)) or involves another federal, state, or local offense that results in a greater offense level (subsections (b)(7) and (c)(1)).

Section 401 of Public Law 101-647 amended 18 U.S.C. 1201 to require that courts take into account certain specific offense characteristics in cases involving a victim under eighteen years of age and directed the Commission to include those specific offense characteristics within the guidelines. Where the guidelines did not already take into account the conduct identified by the Act, additional specific offense characteristics have been provided.

Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendment 96); November 1, 1991 (see Appendix C, amendment 363); November 1, 1992 (see Appendix C, amendment 445); November 1, 1993 (see Appendix C, amendment 478).

2A4.2.Demanding or Receiving Ransom Money

(a)Base Offense Level: 23

(b)Cross Reference

(1)If the defendant was a participant in the kidnapping offense, apply 2A4.1 (Kidnapping; Abduction; Unlawful Restraint).

Commentary

Statutory Provisions: 18 U.S.C. 876, 877, 1202. For additional statutory provision(s), see Appendix A (Statutory Index).

Application Note:

1.A "participant" is a person who is criminally responsible for the commission of the offense, but need not have been convicted.

Background: This section specifically includes conduct prohibited by 18 U.S.C. 1202, requiring that ransom money be received, possessed, or disposed of with knowledge of its criminal origins. The actual demand for ransom under these circumstances is reflected in 2A4.1. This section additionally includes extortionate demands through the use of the United States Postal Service, behavior proscribed by 18 U.S.C. 876-877.

Historical Note: Effective November 1, 1987. Amended effective November 1, 1993 (see Appendix C, amendment 479).

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5.AIR PIRACY

2A5.1.Aircraft Piracy or Attempted Aircraft Piracy

(a)Base Offense Level: 38

(b)Specific Offense Characteristic

(1)If death resulted, increase by 5 levels.

Commentary

Statutory Provisions: 49 U.S.C. 46502(a), (b) (formerly 49 U.S.C. 1472 (i), (n)). For additional statutory provision(s), see Appendix A (Statutory Index).

Background: This section covers aircraft piracy both within the special aircraft jurisdiction of the United States, 49 U.S.C. 46502(a), and aircraft piracy outside that jurisdiction when the defendant is later found in the United States, 49 U.S.C. 46502(b). Seizure of control of an aircraft may be by force or violence, or threat of force or violence, or by any other form of intimidation. The presence of a weapon is assumed in the base offense level.

Historical Note: Effective November 1, 1987. Amended effective November 1, 1995 (see Appendix C, amendment 534).

2A5.2.Interference with Flight Crew Member or Flight Attendant

(a)Base Offense Level (Apply the greatest):

(1)30, if the offense involved intentionally endangering the safety of the aircraft and passengers; or

(2)18, if the offense involved recklessly endangering the safety of the aircraft and passengers; or

(3)if an assault occurred, the offense level from the most analogous assault guideline, 2A2.1-2A2.4; or

(4)9.

Commentary

Statutory Provisions: 49 U.S.C. 46308, 46504 (formerly 49 U.S.C. 1472(c), (j)). For additional statutory provision(s), see Appendix A (Statutory Index).

Background: An adjustment is provided where the defendant intentionally or recklessly endangered the safety of the aircraft and passengers. The offense of carrying a weapon aboard an aircraft, which is proscribed by 49 U.S.C. 46505, is covered in 2K1.5 (Possessing Dangerous Weapons or Materials While Boarding or Aboard an Aircraft).

Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendments 97 and 303); November 1, 1993 (see Appendix C, amendment 480); November 1, 1995 (see Appendix C, amendment 534).

2A5.3.Committing Certain Crimes Aboard Aircraft

(a)Base Offense Level: The offense level applicable to the underlying offense.

Commentary

Statutory Provision: 49 U.S.C. 46506 (formerly 49 U.S.C. 1472(k)(1)).

Application Notes:

1."Underlying offense" refers to the offense listed in 49 U.S.C. 46506 of which the defendant is convicted.

2.If the conduct intentionally or recklessly endangered the safety of the aircraft or passengers, an upward departure may be warranted.

Historical Note: Effective October 15, 1988 (see Appendix C, amendment 65). Amended effective November 1, 1989 (see Appendix C, amendment 98); November 1, 1995 (see Appendix C, amendment 534).

* * * * *

6. THREATENING COMMUNICATIONS

2A6.1.Threatening Communications

(a) Base Offense Level: 12

(b) Specific Offense Characteristics

(1)If the offense involved any conduct evidencing an intent to carry out such threat, increase by 6 levels.

(2)If specific offense characteristic 2A6.1(b)(1) does not apply, and the offense involved a single instance evidencing little or no deliberation, decrease by 4 levels.

Commentary

Statutory Provisions: 18 U.S.C. 871, 876, 877, 878(a), 879. For additional statutory provision(s), see Appendix A (Statutory Index).

Application Note:

1.The Commission recognizes that this offense includes a particularly wide range of conduct and that it is not possible to include all of the potentially relevant circumstances in the offense level. Factors not incorporated in the guideline may be considered by the court in determining whether a departure from the guidelines is warranted. See Chapter Five, Part K (Departures).

Background: These statutes cover a wide range of conduct, the seriousness of which depends upon the defendant's intent and the likelihood that the defendant would carry out the threat. The specific offense characteristics are intended to distinguish such cases.

Historical Note: Effective November 1, 1987. Amended effective November 1, 1993 (see Appendix C, amendment 480).


United States Sentencing Commission