1995 Guidelines Manual

PART H - OFFENSES INVOLVING INDIVIDUAL RIGHTS

1. CIVIL RIGHTS

Historical Note: Introductory Commentary to Part H, Subpart 1, effective November 1, 1987, was deleted effective November 1, 1995 (see Appendix C, amendment 521).

2H1.1.Offenses Involving Individual Rights

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

(1)the offense level from the offense guideline applicable to any underlying offense;

(2)12, if the offense involved two or more participants;

(3)10, if the offense involved (A) the use or threat of force against a person; or (B) property damage or the threat of property damage; or

(4)6, otherwise.

(b)Specific Offense Characteristic

(1)If (A) the defendant was a public official at the time of the offense; or (B) the offense was committed under color of law, increase by 6 levels.

Commentary

Statutory Provisions: 18 U.S.C. 241, 242, 245(b), 246, 247, 248, 1091; 42 U.S.C. 3631.

Application Notes:

1."Offense guideline applicable to any underlying offense" means the offense guideline applicable to any conduct established by the offense of conviction that constitutes an offense under federal, state, or local law (other than an offense that is itself covered under Chapter Two, Part H, Subpart 1).

In certain cases, conduct set forth in the count of conviction may constitute more than one underlying offense (e.g., two instances of assault, or one instance of assault and one instance of arson). In such cases, use the following comparative procedure to determine the applicable base offense level: (i) determine the underlying offenses encompassed within the count of conviction as if the defendant had been charged with a conspiracy to commit multiple offenses. See Application Note 5 of 1B1.2 (Applicable Guidelines); (ii) determine the Chapter Two offense level (i.e., the base offense level, specific offense characteristics, cross references, and special instructions) for each such underlying offense; and (iii) compare each of the Chapter Two offense levels determined above with the alternative base offense level under subsection (a)(2), (3), or (4). The determination of the applicable alternative base offense level is to be based on the entire conduct underlying the count of conviction (i.e., the conduct taken as a whole). Use the alternative base offense level only if it is greater than each of the Chapter Two offense levels determined above. Otherwise, use the Chapter Two offense levels for each of the underlying offenses (with each underlying offense treated as if contained in a separate count of conviction). Then apply subsection (b) to the alternative base offense level, or to the Chapter Two offense levels for each of the underlying offenses, as appropriate.

2."Participant" is defined in the Commentary to 3B1.1 (Aggravating Role).

3.The burning or defacement of a religious symbol with an intent to intimidate shall be deemed to involve the threat of force against a person for the purposes of subsection (a)(3)(A).

4.If the finder of fact at trial or, in the case of a plea of guilty or nolo contendere, the court at sentencing determines beyond a reasonable doubt that the defendant intentionally selected any victim or any property as the object of the offense because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person, an additional 3-level enhancement from 3A1.1(a) will apply. An adjustment from 3A1.1(a) will not apply, however, if a 6-level adjustment from 2H1.1(b) applies. See 3A1.1(c).

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

Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendment 303); November 1, 1990 (see Appendix C, amendments 313 and 327); November 1, 1991 (see Appendix C, amendment 430); November 1, 1995 (see Appendix C, amendment 521).

2H1.2. [Deleted]

Historical Note: Section 2H1.2 (Conspiracy to Interfere with Civil Rights), effective November 1, 1987, amended effective November 1, 1989 (see Appendix C, amendment 303), was deleted by consolidation with 2H1.1 effective November 1, 1990 (see Appendix C, amendment 327).

2H1.3. [Deleted]

Historical Note: Section 2H1.3 (Use of Force or Threat of Force to Deny Benefits or Rights in Furtherance of Discrimination; Damage to Religious Real Property), effective November 1, 1987, amended effective November 1, 1989 (see Appendix C, amendment 165), was deleted by consolidation with 2H1.1 effective November 1, 1995 (see Appendix C, amendment 521).

2H1.4. [Deleted]

Historical Note: Section 2H1.4 (Interference with Civil Rights Under Color of Law), effective November 1, 1987, amended effective November 1, 1989 (see Appendix C, amendment 166), was deleted by consolidation with 2H1.1 effective November 1, 1995 (see Appendix C, amendment 521).

2H1.5. [Deleted]

Historical Note: Section 2H1.5 (Other Deprivations of Rights or Benefits in Furtherance of Discrimination), effective November 1, 1987, amended effective November 1, 1989 (see Appendix C, amendment 167) and November 1, 1990 (see Appendix C, amendment 328), was deleted by consolidation with 2H1.1 effective November 1, 1995 (see Appendix C, amendment 521).

* * * * *

2. POLITICAL RIGHTS

2H2.1. Obstructing an Election or Registration

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

(1)18, if the obstruction occurred by use of force or threat of force against person(s) or property; or

(2)12, if the obstruction occurred by forgery, fraud, theft, bribery, deceit, or other means, except as provided in (3) below; or

(3)6, if the defendant (A) solicited, demanded, accepted, or agreed to accept anything of value to vote, refrain from voting, vote for or against a particular candidate, or register to vote, (B) gave false information to establish eligibility to vote, or (C) voted more than once in a federal election.

Commentary

Statutory Provisions: 18 U.S.C. 241, 242, 245(b)(1)(A), 592, 593, 594, 597; 42 U.S.C. 1973i, 1973j(a), (b). For additional statutory provision(s), see Appendix A (Statutory Index).

Application Note:

1.If the offense resulted in bodily injury or significant property damage, or involved corrupting a public official, an upward departure may be warranted. See Chapter Five, Part K (Departures).

Background: Alternative base offense levels cover three major ways of obstructing an election: by force, by deceptive or dishonest conduct, or by bribery. A defendant who is a public official or who directs others to engage in criminal conduct is subject to an enhancement from Chapter Three, Part B (Role in the Offense).

Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendment 168); November 1, 1995 (see Appendix C, amendment 534).

* * * * *

3. PRIVACY AND EAVESDROPPING

2H3.1.Interception of Communications or Eavesdropping

(a)Base Offense Level: 9

(b)Specific Offense Characteristic

(1)If the purpose of the conduct was to obtain direct or indirect commercial advantage or economic gain, increase by 3 levels.

(c)Cross Reference

(1)If the purpose of the conduct was to facilitate another offense, apply the guideline applicable to an attempt to commit that offense, if the resulting offense level is greater than that determined above.

Commentary

Statutory Provisions: 18 U.S.C. 2511; 47 U.S.C. 605. For additional statutory provision(s), see Appendix A (Statutory Index).

Application Note:

1.If the offense involved interception of satellite cable transmissions for purposes of commercial advantage or private financial gain (including avoiding payment of fees), apply 2B5.3 (Criminal Infringement of Copyright) rather than this guideline.

Background: This section refers to conduct proscribed by 47 U.S.C. 605 and the Electronic Communications Privacy Act of 1986, which amends 18 U.S.C. 2511 and other sections of Title 18 dealing with unlawful interception and disclosure of communications. These statutes proscribe the interception and divulging of wire, oral, radio, and electronic communications. The Electronic Communications Privacy Act of 1986 provides for a maximum term of imprisonment of five years for violations involving most types of communication.

Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendment 169).

2H3.2.Manufacturing, Distributing, Advertising, or Possessing an Eavesdropping Device

(a)Base Offense Level: 6

(b)Specific Offense Characteristic

(1)If the offense was committed for pecuniary gain, increase by 3 levels.

Commentary

Statutory Provision: 18 U.S.C. 2512.

Historical Note: Effective November 1, 1987.

2H3.3.Obstructing Correspondence

(a)Base Offense Level:

(1)6; or

(2)if the conduct was theft of mail, apply 2B1.1 (Larceny, Embezzlement, and Other Forms of Theft);

(3)if the conduct was destruction of mail, apply 2B1.3 (Property Damage or Destruction).

Commentary

Statutory Provision: 18 U.S.C. 1702. For additional statutory provision(s), see Appendix A (Statutory Index).

Background: The statutory provision covered by this guideline is sometimes used to prosecute offenses more accurately described as theft or destruction of mail. In such cases, 2B1.1 (Larceny, Embezzlement, and Other Forms of Theft) or 2B1.3 (Property Damage or Destruction) is to be applied.

Historical Note: Effective November 1, 1987. Amended effective November 1, 1990 (see Appendix C, amendment 313).

* * * * *

4.PEONAGE, INVOLUNTARY SERVITUDE, AND SLAVE TRADE

2H4.1.Peonage, Involuntary Servitude, and Slave Trade

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

(1)15; or

(2)2 plus the offense level applicable to any underlying offense.

Commentary

Statutory Provisions: 18 U.S.C. 1581-1588.

Application Note:

1."Offense level applicable to the underlying offense" is explained in the Commentary to 2H1.1.

Background: This section covers statutes that prohibit peonage, involuntary servitude, and slave trade. For purposes of deterrence and just punishment, the minimum base offense level is 15. However, these offenses frequently involve other serious offenses. In such cases, the offense level will be increased under 2H4.1(a)(2).

Historical Note: Effective November 1, 1987. Amended effective November 1, 1995 (see Appendix C, amendment 521).

United States Sentencing Commission