2005 Federal Sentencing Guidelines
Chapter 2 - PART B - BASIC ECONOMIC OFFENSES
§2B4.1. Bribery in Procurement
of Bank Loan and Other Commercial Bribery
(a) Base Offense Level: 8
(b) Specific Offense Characteristics
(1) If the greater of the value of the bribe or the improper benefit to
be conferred (A) exceeded $2,000 but did not exceed $5,000, increase by 1 level;
or (B) exceeded $5,000, increase by the number of levels from the table in §2B1.1
(Theft, Property Destruction, and Fraud) corresponding to that amount.
(2) (Apply the greater) If—
(A) the defendant derived more than $1,000,000 in gross receipts from
one or more financial institutions as a result of the offense, increase
by 2 levels; or
(B) the offense substantially jeopardized the safety and soundness of
a financial institution, increase by 4 evels.
If the resulting offense level determined under subdivision (A) or (B) is
less than level 24, increase to level 24.
(c) Special Instruction for Fines - Organizations
(1) In lieu of the pecuniary loss under subsection (a)(3) of §8C2.4
(Base Fine), use the greatest of: (A) the value of the unlawful payment;
(B) the value of the benefit received or to be received in return for the
unlawful payment; or (C) the consequential damages resulting from the unlawful
Statutory Provisions: 18
U.S.C. §§ 215, 224, 225; 26 U.S.C. §§ 9012(e), 9042(d);
41 U.S.C. §§ 53, 54; 42 U.S.C. §§ 1395nn(b)(1), (2), 1396h(b)(1),(2);
49 U.S.C. § 11902. For additional statutory provision(s), see Appendix
A (Statutory Index).
1. This guideline covers commercial bribery offenses and kickbacks that do
not involve officials of federal, state, or local government, foreign governments,
or public international organizations. See Part
C, Offenses Involving Public Officials, if any such officials are involved.
2. The "value of the improper benefit to be conferred" refers to the value
of the action to be taken or effected in return for the bribe. See Commentary
to §2C1.1 (Offering, Giving, Soliciting, or Receiving a Bribe; Extortion
Under Color of Official Right; Fraud Involving the Deprivation of the Intangible
Right to Honest Services of Public Officials; Conspiracy to Defraud by Interference
with Governmental Functions).
3. "Financial institution," as used in this guideline, is defined to include
any institution described in 18 U.S.C. §§ 20, 656, 657, 1005-1007,
and 1014; any state or foreign bank, trust company, credit union, insurance
company, investment company, mutual fund, savings (building and loan) association,
union or employee pension fund; any health, medical or hospital insurance association;
brokers and dealers registered, or required to be registered, with the Securities
and Exchange Commission; futures commodity merchants and commodity pool operators
registered, or required to be registered, with the Commodity Futures Trading
Commission; and any similar entity, whether or not insured by the federal government. "Union
or employee pension fund" and "any health, medical, or hospital insurance association," as
used above, primarily include large pension funds that serve many individuals
(e.g., pension funds of large
national and international organizations, unions, and corporations doing substantial
interstate business), and associations that undertake to provide pension, disability,
or other benefits (e.g., medical
or hospitalization insurance) to large numbers of persons.
4. Gross Receipts Enhancement under
(A) In General.—For
purposes of subsection (b)(2)(A), the defendant shall be considered to have
derived more than $1,000,000 in gross receipts if the gross receipts to the
defendant individually, rather than to all participants, exceeded $1,000,000.
receipts from the offense" includes all property, real or personal, tangible
or intangible, which is obtained directly or indirectly as a result of such
offense. See 18 U.S.C. § 982(a)(4).
5. Enhancement for Substantially
Jeopardizing the Safety and Soundness of a Financial Institution under Subsection
(b)(2)(B).—For purposes of subsection (b)(2)(B), an offense
shall be considered to have substantially jeopardized the safety and soundness
of a financial institution if, as a consequence of the offense, the institution
(A) became insolvent; (B) substantially reduced benefits to pensioners or
insureds; (C) was unable on demand to refund fully any deposit, payment,
or investment; (D) was so depleted of its assets as to be forced to merge
with another institution in order to continue active operations; or (E) was
placed in substantial jeopardy of any of subdivisions (A) through (D) of
6. If the defendant is convicted under 18 U.S.C. § 225 (relating to
a continuing financial crimes enterprise), the offense level is that applicable
to the underlying series of offenses comprising the
"continuing financial crimes enterprise."
Background: This guideline
applies to violations of various federal bribery statutes that do not involve
governmental officials. The base offense level is to be enhanced based upon
the value of the unlawful payment or the value of the action to be taken or
effected in return for the unlawful payment, whichever is greater.
One of the more commonly prosecuted offenses to which this guideline applies
is offering or accepting a fee in connection with procurement of a loan from
a financial institution in violation of 18 U.S.C. § 215.
As with non-commercial bribery, this guideline considers not only the amount
of the bribe but also the value of the action received in return. Thus, for
example, if a bank officer agreed to the offer of a $25,000 bribe to approve
a $250,000 loan under terms for which the applicant would not otherwise qualify,
the court, in increasing the offense level, would use the greater of the $25,000
bribe, and the savings in interest over the life of the loan compared with
alternative loan terms. If a gambler paid a player $5,000 to shave points in
a nationally televised basketball game, the value of the action to the gambler
would be the amount that he and his confederates won or stood to gain. If that
amount could not be estimated, the amount of the bribe would be used to determine
the appropriate increase in offense level.
This guideline also applies to making prohibited payments to induce the award
of subcontracts on federal projects for which the maximum term of imprisonment
authorized was recently increased from two to ten years. 41 U.S.C. §§ 51,
53-54. Violations of 42 U.S.C. §§ 1395nn(b)(1) and (b)(2), involve
the offer or acceptance of a payment to refer an individual for services or
items paid for under the Medicare program. Similar provisions in 42 U.S.C. §§ 1396h(b)(1)
and (b)(2) cover the offer or acceptance of a payment for referral to the Medicaid
This guideline also applies to violations of law involving bribes and kickbacks
in expenses incurred for a presidential nominating convention or presidential
election campaign. These offenses are prohibited under 26 U.S.C. §§ 9012(e)
and 9042(d), which apply to candidates for President and Vice President whose
campaigns are eligible for federal matching funds.
This guideline also applies to violations of 18 U.S.C. § 224, sports
bribery, as well as certain violations of the Interstate Commerce Act.
Subsection (b)(2)(A) implements, in a broader form, the instruction to the
Commission in section 961(m) of Public Law 101-73.
Subsection (b)(2)(B) implements the instruction to the Commission in section
2507 of Public Law 101-647.
Historical Note: Effective
November 1, 1987. Amended effective November 1, 1990 (see Appendix
C, amendment 317); November 1, 1991 (see Appendix
C, amendments 364 and 422); November 1, 1992 (see Appendix
C, amendment 468); November 1, 1997 (see Appendix
C, amendment 553); November 1, 2001 (see Appendix
C, amendment 617); November 1, 2002 (see Appendix
C, amendments 639 and 646); November 1, 2004 (see Appendix
C, amendment 666).