§2A6.1. Threatening or Harassing Communications
(a) Base Offense Level:
(1) 12; or
(2) 6, if the defendant is convicted of an offense under 47 U.S.C. § 223(a)(1)(C), (D), or (E) that did not involve a threat to injure a person or property.
(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 the offense involved more than two threats, increase by 2 levels.
(3) If the offense involved the violation of a court protection order, increase by 2 levels.
(4) If (A) subsection (a)(2) and subdivisions (1), (2), and (3) do not apply, and (B) the offense involved a single instance evidencing little or no deliberation, decrease by 4 levels.
Statutory Provisions: 18 U.S.C. §§ 871, 876, 877, 878(a), 879; 47 U.S.C. § 223(a)(1)(C)-(E). For additional statutory provision(s), see Appendix A (Statutory Index).
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).
2. In determining whether subsections (b)(1), (b)(2), and (b)(3) apply, the court shall consider both conduct that occurred prior to the offense and conduct that occurred during the offense; however, conduct that occurred prior to the offense must be substantially and directly connected to the offense, under the facts of the case taken as a whole. For example, if the defendant engaged in several acts of mailing threatening letters to the same victim over a period of years (including acts that occurred prior to the offense), then for purposes of determining whether subsections (b)(1), (b)(2), and (b)(3) apply, the court shall consider only those prior acts of threatening the victim that have a substantial and direct connection to the offense.
For purposes of Chapter Three, Part D (Multiple Counts), multiple counts involving making a threatening or harassing communication to the same victim are grouped together under §3D1.2 (Groups of Closely Related Counts). Multiple counts involving different victims are not to be grouped under §3D1.2.
If the conduct involved substantially more than two threatening communications to the same victim or a prolonged period of making harassing communications to the same victim, an upward departure may be warranted.
Background: These statutes cover a wide range of conduct, the seriousness of which depends upon the defendants intent and the likelihood that the defendant would carry out the threat. The specific offense characteristics are intended to distinguish such cases.