1995 Guidelines Manual

Chapter Two - PART B - OFFENSES INVOLVING PROPERTY

1 . THEFT, EMBEZZLEMENT, RECEIPT OF STOLEN PROPERTY, AND PROPERTY DESTRUCTION

Introductory Commentary

These sections address the most basic forms of property offenses: theft, embezzlement, transactions in stolen goods, and simple property damage or destruction. (Arson is dealt with separately in Part K, Offenses Involving Public Safety.) These guidelines apply to offenses prosecuted under a wide variety of federal statutes, as well as offenses that arise under the Assimilative Crimes Act.

Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendment 303).

2B1.1.Larceny, Embezzlement, and Other Forms of Theft; Receiving, Transporting, Transferring, Transmitting, or Possessing Stolen Property

(a)Base Offense Level: 4

(b)Specific Offense Characteristics

(1)If the loss exceeded $100, increase the offense level as follows:

Loss (Apply the Greatest) Increase in Level

(A)$100 or less no increase
(B)More than $100 add 1
(C)More than $1,000 add 2
(D)More than $2,000 add 3
(E)More than $5,000 add 4
(F)More than $10,000 add 5
(G)More than $20,000 add 6
(H)More than $40,000 add 7
(I)More than $70,000 add 8
(J)More than $120,000 add 9
(K)More than $200,000 add 10
(L)More than $350,000 add 11
(M)More than $500,000 add 12
(N)More than $800,000 add 13
(O)More than $1,500,000 add 14
(P)More than $2,500,000 add 15
(Q)More than $5,000,000 add 16
(R)More than $10,000,000 add 17
(S)More than $20,000,000 add 18
(T)More than $40,000,000 add 19
(U)More than $80,000,000 add 20.

(2)If the theft was from the person of another, increase by 2 levels.

(3)If (A) undelivered United States mail was taken, or the taking of such item was an object of the offense; or (B) the stolen property received, transported, transferred, transmitted, or possessed was undelivered United States mail, and the offense level as determined above is less than level 6, increase to level 6.

(4)(A)If the offense involved more than minimal planning, increase by 2 levels; or

(B)If the offense involved receiving stolen property, and the defendant was a person in the business of receiving and selling stolen property, increase by 4 levels.

(5)If the offense involved an organized scheme to steal vehicles or vehicle parts, and the offense level as determined above is less than level 14, increase to level 14.

(6)If the offense --

(A)substantially jeopardized the safety and soundness of a financial institution; or

(B)affected a financial institution and the defendant derived more than $1,000,000 in gross receipts from the offense,

increase by 4 levels. If the resulting offense level is less than level 24, increase to level 24.

(c)Cross Reference

(1)If (A) a firearm, destructive device, explosive material, or controlled substance was taken, or the taking of such item was an object of the offense, or (B) the stolen property received, transported, transferred, transmitted, or possessed was a firearm, destructive device, explosive material, or controlled substance, apply 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking; Attempt or Conspiracy), 2D2.1 (Unlawful Possession; Attempt or Conspiracy), 2K1.3 (Unlawful Receipt, Possession, or Transportation of Explosive Materials; Prohibited Transactions Involving Explosive Materials), or 2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition), as appropriate, if the resulting offense level is greater than that determined above.

Commentary

Statutory Provisions: 18 U.S.C. 225, 553(a)(1), 641, 656, 657, 659, 662, 664, 1702, 1708, 2113(b), 2312-2317; 29 U.S.C. 501(c). For additional statutory provision(s), see Appendix A (Statutory Index).

Application Notes:

1."More than minimal planning," "firearm," and "destructive device" are defined in the Commentary to 1B1.1 (Application Instructions).

2."Loss" means the value of the property taken, damaged, or destroyed. Ordinarily, when property is taken or destroyed the loss is the fair market value of the particular property at issue. Where the market value is difficult to ascertain or inadequate to measure harm to the victim, the court may measure loss in some other way, such as reasonable replacement cost to the victim. Loss does not include the interest that could have been earned had the funds not been stolen. When property is damaged, the loss is the cost of repairs, not to exceed the loss had the property been destroyed. Examples: (1) In the case of a theft of a check or money order, the loss is the loss that would have occurred if the check or money order had been cashed. (2) In the case of a defendant apprehended taking a vehicle, the loss is the value of the vehicle even if the vehicle is recovered immediately.

Where the offense involved making a fraudulent loan or credit card application, or other unlawful conduct involving a loan or credit card, the loss is to be determined under the principles set forth in the Commentary to 2F1.1 (Fraud and Deceit).

In certain cases, an offense may involve a series of transactions without a corresponding increase in loss. For example, a defendant may embezzle $5,000 from a bank and conceal this embezzlement by shifting this amount from one account to another in a series of nine transactions over a six-month period. In this example, the loss is $5,000 (the amount taken), not $45,000 (the sum of the nine transactions), because the additional transactions did not increase the actual or potential loss.

In stolen property offenses (receiving, transporting, transferring, transmitting, or possessing stolen property), the loss is the value of the stolen property determined as in a theft offense.

In the case of a partially completed offense (e.g., an offense involving a completed theft that is part of a larger, attempted theft), the offense level is to be determined in accordance with the provisions of 2X1.1 (Attempt, Solicitation, or Conspiracy) whether the conviction is for the substantive offense, the inchoate offense (attempt, solicitation, or conspiracy), or both; see Application Note 4 in the Commentary to 2X1.1.

3.For the purposes of subsection (b)(1), the loss need not be determined with precision. The court need only make a reasonable estimate of the loss, given the available information. This estimate, for example, may be based upon the approximate number of victims and the average loss to each victim, or on more general factors such as the scope and duration of the offense.

4.The loss includes any unauthorized charges made with stolen credit cards, but in no event less than $100 per card. See Commentary to 2X1.1 (Attempt, Solicitation, or Conspiracy) and 2F1.1 (Fraud and Deceit).

5.Controlled substances should be valued at their estimated street value.

6."Undelivered United States mail" means mail that has not actually been received by the addressee or his agent (e.g., it includes mail that is in the addressee's mail box).

7."From the person of another" refers to property, taken without the use of force, that was being held by another person or was within arms' reach. Examples include pick-pocketing or non-forcible purse-snatching, such as the theft of a purse from a shopping cart.

8.Subsection (b)(5), referring to an "organized scheme to steal vehicles or vehicle parts," provides an alternative minimum measure of loss in the case of an ongoing, sophisticated operation such

as an auto theft ring or "chop shop." "Vehicles" refers to all forms of vehicles, including aircraft and watercraft.

9."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.

10.An offense shall be deemed to have "substantially jeopardized the safety and soundness of a financial institution" if, as a consequence of the offense, the institution became insolvent; substantially reduced benefits to pensioners or insureds; was unable on demand to refund fully any deposit, payment, or investment; was so depleted of its assets as to be forced to merge with another institution in order to continue active operations; or was placed in substantial jeopardy of any of the above.

11."The defendant derived more than $1,000,000 in gross receipts from the offense," as used in subsection (b)(6)(B), generally means that the gross receipts to the defendant individually, rather than to all participants, exceeded $1,000,000. "Gross 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).

12.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."

13.If subsection (b)(6)(A) or (B) applies, there shall be a rebuttable presumption that the offense involved "more than minimal planning."

14.If the offense involved theft or embezzlement from an employee pension or welfare benefit plan (a violation of 18 U.S.C. 664) and the defendant was a fiduciary of the benefit plan, an adjustment under 3B1.3 (Abuse of Position of Trust or Use of Special Skill) will apply. "Fiduciary of the benefit plan" is defined in 29 U.S.C. 1002(21)(A) to mean a person who exercises any discretionary authority or control in respect to the management of such plan or exercises authority or control in respect to management or disposition of its assets, or who renders investment advice for a fee or other direct or indirect compensation with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or who has any discretionary authority or responsibility in the administration of such plan.

If the offense involved theft or embezzlement from a labor union (a violation of 29 U.S.C. 501(c)) and the defendant was a union officer or occupied a position of trust in the union as set forth in 29 U.S.C. 501(a), an adjustment under 3B1.3 (Abuse of Position of Trust or Use of Special Skill) will apply.

Background: The value of the property stolen plays an important role in determining sentences for theft and other offenses involving stolen property because it is an indicator of both the harm to the victim and the gain to the defendant. Because of the structure of the Sentencing Table (Chapter 5, Part A), subsection (b)(1) results in an overlapping range of enhancements based on the loss.

The guidelines provide an enhancement for more than minimal planning, which includes most offense behavior involving affirmative acts on multiple occasions. Planning and repeated acts are indicative of an intention and potential to do considerable harm. Also, planning is often related to increased difficulties of detection and proof.

Consistent with statutory distinctions, an increased minimum offense level is provided for the theft of undelivered mail. Theft of undelivered mail interferes with a governmental function, and the scope of the theft may be difficult to ascertain.

Theft from the person of another, such as pickpocketing or non-forcible purse-snatching, receives an enhanced sentence because of the increased risk of physical injury. This guideline does not include an enhancement for thefts from the person by means of force or fear; such crimes are robberies.

A minimum offense level of 14 is provided for offenses involving an organized scheme to steal vehicles or vehicle parts. Typically, the scope of such activity is substantial (i.e., the value of the stolen property, combined with an enhancement for "more than minimal planning" would itself result in an offense level of at least 14), but the value of the property is particularly difficult to ascertain in individual cases because the stolen property is rapidly resold or otherwise disposed of in the course of the offense. Therefore, the specific offense characteristic of "organized scheme" is used as an alternative to "loss" in setting the offense level.

Subsection (b)(6)(A) implements, in a broader form, the instruction to the Commission in Section 961(m) of Public Law 101-73.

Subsection (b)(6)(B) implements the instruction to the Commission in Section 2507 of Public Law 101-647.

Historical Note: Effective November 1, 1987. Amended effective June 15, 1988 (see Appendix C, amendment 7); November 1, 1989 (see Appendix C, amendments 99-101 and 303); November 1, 1990 (see Appendix C, amendments 312, 317, and 361); November 1, 1991 (see Appendix C, amendments 364 and 393); November 1, 1993 (see Appendix C, amendments 481 and 482); November 1, 1995 (see Appendix C, amendment 512).

2B1.2. [Deleted]

Historical Note: Section 2B1.2 (Receiving, Transporting, Transferring, Transmitting, or Possessing Stolen Property), effective November 1, 1987, amended effective January 15, 1988 (see Appendix C, amendment 8), June 15, 1988 (see Appendix C, amendment 9), November 1, 1989 (see Appendix C, amendments 102-104), and November 1, 1990 (see Appendix C, amendments 312 and 361), was deleted by consolidation with 2B1.1 effective November 1, 1993 (see Appendix C, amendment 481).

2B1.3.Property Damage or Destruction

(a)Base Offense Level: 4

(b)Specific Offense Characteristics

(1)If the loss exceeded $100, increase by the corresponding number of levels from the table in 2B1.1.

(2)If undelivered United States mail was destroyed, and the offense level as determined above is less than level 6, increase to level 6.

(3)If the offense involved more than minimal planning, increase by 2 levels.

(c)Cross Reference

(1)If the offense involved arson, or property damage by use of explosives, apply 2K1.4 (Arson; Property Damage by Use of Explosives).

Commentary

Statutory Provisions: 18 U.S.C. 1361, 1363, 1702, 1703 (if vandalism or malicious mischief, including destruction of mail is involved). For additional statutory provision(s), see Appendix A (Statutory Index).

Application Notes:

1."More than minimal planning" is defined in the Commentary to 1B1.1 (Application Instructions).

2.Valuation of loss is discussed in the Commentary to 2B1.1 (Larceny, Embezzlement, and Other Forms of Theft).

3."Undelivered United States mail" means mail that has not been received by the addressee or his agent (e.g., it includes mail that is in the addressee's mailbox).

4.In some cases, the monetary value of the property damaged or destroyed may not adequately reflect the extent of the harm caused. For example, the destruction of a $500 telephone line may cause an interruption in service to thousands of people for several hours. In such instances, an upward departure would be warranted.

Historical Note: Effective November 1, 1987. Amended effective June 15, 1988 (see Appendix C, amendment 10); November 1, 1990 (see Appendix C, amendments 312 and 313).

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2.BURGLARY AND TRESPASS

2B2.1.Burglary of a Residence or a Structure Other than a Residence

(a)Base Offense Level:

(1)17, if a residence; or

(2)12, if a structure other than a residence.

(b)Specific Offense Characteristics

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

(2)If the loss exceeded $2,500, increase the offense level as follows:

Loss (Apply the Greatest) Increase in Level

(A)$2,500 or less no increase
(B)More than $2,500 add 1
(C)More than $10,000 add 2
(D)More than $50,000 add 3
(E)More than $250,000 add 4
(F)More than $800,000 add 5
(G)More than $1,500,000 add 6
(H)More than $2,500,000 add 7
(I)More than $5,000,000 add 8.

(3)If a firearm, destructive device, or controlled substance was taken, or if the taking of such item was an object of the offense, increase by 1 level.

(4)If a dangerous weapon (including a firearm) was possessed, increase by 2 levels.

Historical Note: Effective November 1, 1987. Amended effective January 15, 1988 (see Appendix C, amendment 11); June 15, 1988 (see Appendix C, amendment 12); November 1, 1989 (see Appendix C, amendments 105 and 106); November 1, 1990 (see Appendix C, amendments 315 and 361); November 1, 1993 (see Appendix C, amendment 481).

2B2.2. [Deleted]

Historical Note: Section 2B2.2 (Burglary of Other Structures), effective November 1, 1987, amended effective June 15, 1988 (see Appendix C, amendment 13), November 1, 1989 (see Appendix C, amendment 107), and November 1, 1990 (see Appendix C, amendments 315 and 361), was deleted by consolidation with 2B2.1 effective November 1, 1993 (see Appendix C, amendment 481).

2B2.3.Trespass

(a)Base Offense Level: 4

(b) Specific Offense Characteristics

(1)If the trespass occurred at a secured government facility, a nuclear energy facility, or a residence, increase by 2 levels.

(2)If a dangerous weapon (including a firearm) was possessed, increase by 2 levels.

Commentary

Statutory Provision: 42 U.S.C. 7270b. For additional statutory provision(s), see Appendix A (Statutory Index).

Application Note:

1."Firearm" and "dangerous weapon" are defined in the Commentary to 1B1.1 (Application Instructions).

Background: Most trespasses punishable under federal law involve federal lands or property. The trespass section provides an enhancement for offenses involving trespass on secured government installations, such as nuclear facilities, to protect a significant federal interest. Additionally, an enhancement is provided for trespass at a residence.

Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendments 108 and 109).

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3.ROBBERY, EXTORTION, AND BLACKMAIL

2B3.1.Robbery

(a)Base Offense Level: 20

(b)Specific Offense Characteristics

(1)If (A) the property of a financial institution or post office was taken, or if the taking of such property was an object of the offense, or (B) the offense involved carjacking, increase by 2 levels.

(2)(A) If a firearm was discharged, increase by 7 levels; (B) if a firearm was otherwise used, increase by 6 levels; (C) if a firearm was brandished, displayed, or possessed, increase by 5 levels; (D) if a dangerous weapon was otherwise used, increase by 4 levels; (E) if a dangerous weapon was brandished, displayed, or possessed, increase by 3 levels; or (F) if an express threat of death was made, increase by 2 levels.

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

Degree of Bodily InjuryIncrease in Level

(A)Bodily Injuryadd 2

(B)Serious Bodily Injuryadd 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 11 levels.

(4)(A) If any person was abducted to facilitate commission of the offense or to facilitate escape, increase by 4 levels; or (B) if any person was physically restrained to facilitate commission of the offense or to facilitate escape, increase by 2 levels.

(5)If a firearm, destructive device, or controlled substance was taken, or if the taking of such item was an object of the offense, increase by 1 level.

(6)If the loss exceeded $10,000, increase the offense level as follows:

Loss (Apply the Greatest) Increase in Level

(A)$10,000 or less no increase
(B)More than $10,000 add 1
(C)More than $50,000 add 2
(D)More than $250,000 add 3
(E)More than $800,000 add 4
(F)More than $1,500,000 add 5
(G)More than $2,500,000 add 6
(H)More than $5,000,000 add 7.

(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).

Commentary

Statutory Provisions: 18 U.S.C. 1951, 2113, 2114, 2118(a), 2119. For additional statutory provision(s), see Appendix A (Statutory Index).

Application Notes:

1."Firearm," "destructive device," "dangerous weapon," "otherwise used," "brandished," "bodily injury," "serious bodily injury," "permanent or life-threatening bodily injury," "abducted," and "physically restrained" are defined in the Commentary to 1B1.1 (Application Instructions).

"Carjacking" means the taking or attempted taking of a motor vehicle from the person or presence of another by force and violence or by intimidation.

2.When an object that appeared to be a dangerous weapon was brandished, displayed, or possessed, treat the object as a dangerous weapon for the purposes of subsection (b)(2)(E).

3. Valuation of loss is discussed in the Commentary to 2B1.1 (Larceny, Embezzlement, and Other Forms of Theft).

4.The combined adjustments for weapon involvement and injury are limited to a maximum enhancement of 11 levels.

5.If the defendant intended to murder the victim, an upward departure may be warranted; see 2A2.1 (Assault With Intent to Commit Murder; Attempted Murder).

6.An "express threat of death," as used in subsection (b)(2)(F), may be in the form of an oral or written statement, act, gesture, or combination thereof. For example, an oral or written demand using words such as "Give me the money or I will kill you", "Give me the money or I will pull the pin on the grenade I have in my pocket", "Give me the money or I will shoot you", "Give me your money or else (where the defendant draws his hand across his throat in a slashing motion)", or "Give me the money or you are dead" would constitute an express threat of death. The court should consider that the intent of the underlying provision is to provide an increased offense level for cases in which the offender(s) engaged in conduct that would instill in a reasonable person, who is a victim of the offense, significantly greater fear than that necessary to constitute an element of the offense of robbery.

Background: Possession or use of a weapon, physical injury, and unlawful restraint sometimes occur during a robbery. The guideline provides for a range of enhancements where these factors are present.

Although in pre-guidelines practice the amount of money taken in robbery cases affected sentence length, its importance was small compared to that of the other harm involved. Moreover, because of the relatively high base offense level for robbery, an increase of 1 or 2 levels brings about a considerable increase in sentence length in absolute terms. Accordingly, the gradations for property loss increase more slowly than for simple property offenses.

The guideline provides an enhancement for robberies where a victim was forced to accompany the defendant to another location, or was physically restrained by being tied, bound, or locked up.

Historical Note: Effective November 1, 1987. Amended effective June 15, 1988 (see Appendix C, amendments 14 and 15); November 1, 1989 (see Appendix C, amendments 110 and 111); November 1, 1990 (see Appendix C, amendments 314, 315, and 361); November 1, 1991 (see Appendix C, amendment 365); November 1, 1993 (see Appendix C, amendment 483).

2B3.2.Extortion by Force or Threat of Injury or Serious Damage

(a)Base Offense Level: 18

(b)Specific Offense Characteristics

(1)If the offense involved an express or implied threat of death, bodily injury, or kidnapping, increase by 2 levels.

(2)If the greater of the amount demanded or the loss to the victim exceeded $10,000, increase by the corresponding number of levels from the table in 2B3.1(b)(6).

(3)(A)(i) If a firearm was discharged, increase by 7 levels; (ii) if a firearm was otherwise used, increase by 6 levels; (iii) if a firearm was brandished, displayed, or possessed, increase by 5 levels; (iv) if a dangerous weapon was otherwise used, increase by 4 levels; or (v) if a dangerous weapon was brandished, displayed, or possessed, increase by 3 levels; or

(B) If the offense involved preparation to carry out a threat of (i) death, (ii) serious bodily injury, (iii) kidnapping, or (iv) product tampering; or if the participant(s) otherwise demonstrated the ability to carry out such threat, increase by 3 levels.

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

Degree of Bodily InjuryIncrease in Level

(A)Bodily Injuryadd 2

(B)Serious Bodily Injuryadd 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 (3) and (4) shall not exceed 11 levels.

(5)(A) If any person was abducted to facilitate commission of the offense or to facilitate escape, increase by 4 levels; or (B) if any person was physically restrained to facilitate commission of the offense or to facilitate escape, increase by 2 levels.

(c)Cross References

(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).

(2)If the offense was tantamount to attempted murder, apply 2A2.1 (Assault With Intent to Commit Murder; Attempted Murder) if the resulting offense level is greater than that determined above.

Commentary

Statutory Provisions: 18 U.S.C. 875(b), 876, 877, 1951. For additional statutory provision(s), see Appendix A (Statutory Index).

Application Notes:

1."Firearm," "dangerous weapon," "otherwise used," "brandished," "bodily injury," "serious bodily injury," "permanent or life-threatening bodily injury," "abducted," and "physically restrained" are defined in the Commentary to 1B1.1 (Application Instructions).

2.This guideline applies if there was any threat, express or implied, that reasonably could be interpreted as one to injure a person or physically damage property, or any comparably serious threat, such as to drive an enterprise out of business. Even if the threat does not in itself imply violence, the possibility of violence or serious adverse consequences may be inferred from the circumstances of the threat or the reputation of the person making it. An ambiguous threat, such as "pay up or else," or a threat to cause labor problems, ordinarily should be treated under this section.

3.Guidelines for bribery involving public officials are found in Part C, Offenses Involving Public Officials. "Extortion under color of official right," which usually is solicitation of a bribe by a public official, is covered under 2C1.1 unless there is use of force or a threat that qualifies for treatment under this section. Certain other extortion offenses are covered under the provisions of Part E, Offenses Involving Criminal Enterprises and Racketeering.

4.The combined adjustments for weapon involvement and injury are limited to a maximum enhancement of 11 levels.

5."Loss to the victim," as used in subsection (b)(2), means any demand paid plus any additional consequential loss from the offense (e.g., the cost of defensive measures taken in direct response to the offense).

6.In certain cases, an extortionate demand may be accompanied by conduct that does not qualify as a display of a dangerous weapon under subsection (b)(3)(A)(v) but is nonetheless similar in seriousness, demonstrating the defendant's preparation or ability to carry out the threatened harm (e.g., an extortionate demand containing a threat to tamper with a consumer product accompanied by a workable plan showing how the product's tamper-resistant seals could be defeated, or a threat to kidnap a person accompanied by information showing study of that person's daily routine). Subsection (b)(3)(B) addresses such cases.

7.If the offense involved the threat of death or serious bodily injury to numerous victims (e.g., in the case of a plan to derail a passenger train or poison consumer products), an upward departure may be warranted.

8.If the offense involved organized criminal activity, or a threat to a family member of the victim, an upward departure may be warranted.

Background: The Hobbs Act, 18 U.S.C. 1951, prohibits extortion, attempted extortion, and conspiracy to extort. It provides for a maximum term of imprisonment of twenty years. 18 U.S.C. 875-877 prohibits communication of extortionate demands through various means. The maximum penalty under these statutes varies from two to twenty years. Violations of 18 U.S.C. 875 involve threats or demands transmitted by interstate commerce. Violations of 18 U.S.C. 876 involve the use of the United States mails to communicate threats, while violations of 18 U.S.C. 877 involve mailing threatening communications from foreign countries.

Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendments 112, 113, and 303); November 1, 1990 (see Appendix C, amendment 316); November 1, 1991 (see Appendix C, amendment 366); November 1, 1993 (see Appendix C, amendment 479).

2B3.3.Blackmail and Similar Forms of Extortion

(a)Base Offense Level: 9

(b)Specific Offense Characteristic

(1)If the greater of the amount obtained or demanded exceeded $2,000, increase by the corresponding number of levels from the table in 2F1.1.

(c)Cross References

(1)If the offense involved extortion under color of official right, apply 2C1.1 (Offering, Giving, Soliciting, or Receiving a Bribe; Extortion Under Color of Official Right).

(2)If the offense involved extortion by force or threat of injury or serious damage, apply 2B3.2 (Extortion by Force or Threat of Injury or Serious Damage).

Commentary

Statutory Provisions: 18 U.S.C. 873, 875-877, 1951. For additional statutory provision(s), see Appendix A (Statutory Index).

Application Note:

1.This section applies only to blackmail and similar forms of extortion where there clearly is no threat of violence to person or property. "Blackmail" (18 U.S.C. 873) is defined as a threat to disclose a violation of United States law unless money or some other item of value is given.

Background: Under 18 U.S.C. 873, the maximum term of imprisonment authorized for blackmail is one year. Extortionate threats to injure a reputation, or other threats that are less serious than those covered by 2B3.2, may also be prosecuted under 18 U.S.C. 875-877, which carry higher maximum sentences.

Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendment 114); November 1, 1993 (see Appendix C, amendment 479).

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4.COMMERCIAL BRIBERY AND KICKBACKS

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 exceeded $2,000, increase the offense level by the corresponding number of levels from the table in 2F1.1.

(2)If the offense --

(A)substantially jeopardized the safety and soundness of a financial institution; or

(B)affected a financial institution and the defendant derived more than $1,000,000 in gross receipts from the offense,

increase by 4 levels. If the resulting offense level 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 payment.

Commentary

Statutory Provisions: 15 U.S.C. 78dd-1, 78dd-2; 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. 11907(a), (b). For additional statutory provision(s), see Appendix A (Statutory Index).

Application Notes:

1.This guideline covers commercial bribery offenses and kickbacks that do not involve officials of federal, state, or local government. See Part C, Offenses Involving Public Officials, if governmental 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).

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.An offense shall be deemed to have "substantially jeopardized the safety and soundness of a financial institution" if, as a consequence of the offense, the institution became insolvent; substantially reduced benefits to pensioners or insureds; was unable on demand to refund fully any deposit, payment, or investment; was so depleted of its assets as to be forced to merge with another institution in order to continue active operations; or was placed in substantial jeopardy of any of the above.

5."The defendant derived more than $1,000,000 in gross receipts from the offense," as used in subsection (b)(2)(B), generally means that the gross receipts to the defendant individually, rather than to all participants, exceeded $1,000,000. "Gross 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).

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 program.

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 the Foreign Corrupt Practices Act, 15 U.S.C. 78dd-1 and 78dd-2, and 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).

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5.COUNTERFEITING AND INFRINGEMENT OF COPYRIGHT OR TRADEMARK

Historical Note: Effective November 1, 1987. Amended effective November 1, 1993 (see Appendix C, amendment 481).

2B5.1.Offenses Involving Counterfeit Bearer Obligations of the United States

(a)Base Offense Level: 9

(b)Specific Offense Characteristics

(1)If the face value of the counterfeit items exceeded $2,000, increase by the corresponding number of levels from the table at 2F1.1 (Fraud and Deceit).

(2)If the defendant manufactured or produced any counterfeit obligation or security of the United States, or possessed or had custody of or control over a counterfeiting device or materials used for counterfeiting, and the offense level as determined above is less than 15, increase to 15.

(3)If a dangerous weapon (including a firearm) was possessed in connection with the offense, increase by 2 levels. If the resulting offense level is less than level 13, increase to level 13.

Commentary

Statutory Provisions: 18 U.S.C. 471-474, 476, 477, 500, 501, 1003. For additional statutory provision(s), see Appendix A (Statutory Index).

Application Notes:

1.This guideline applies to counterfeiting of United States currency and coins, food stamps, postage stamps, treasury bills, bearer bonds and other items that generally could be described as bearer obligations of the United States, i.e., that are not made out to a specific payee.

2."Counterfeit," as used in this section, means an instrument that purports to be genuine but is not, because it has been falsely made or manufactured in its entirety. Offenses involving genuine instruments that have been altered are covered under 2F1.1.

3.Subsection (b)(2) does not apply to persons who merely photocopy notes or otherwise produce items that are so obviously counterfeit that they are unlikely to be accepted even if subjected to only minimal scrutiny.

Background: Possession of counterfeiting devices to copy obligations (including securities) of the United States is treated as an aggravated form of counterfeiting because of the sophistication and planning involved in manufacturing counterfeit obligations and the public policy interest in protecting the integrity of government obligations. Similarly, an enhancement is provided for a defendant who produces, rather than merely passes, the counterfeit items.

Subsection (b)(3) implements, in a broader form, the instruction to the Commission in section 110512 of Public Law 103-322.

Historical Note: Effective November 1, 1987. Amended effective January 15, 1988 (see Appendix C, amendment 16); November 1, 1989 (see Appendix C, amendment 115); November 1, 1995 (see Appendix C, amendment 513).

2B5.2. [Deleted]

Historical Note: Section 2B5.2 (Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States), effective November 1, 1987, amended effective January 15, 1988 (see Appendix C, amendment 17) and November 1, 1989 (see Appendix C, amendment 116), was deleted by consolidation with 2F1.1 effective November 1, 1993 (see Appendix C, amendment 481).

2B5.3.Criminal Infringement of Copyright or Trademark

(a)Base Offense Level: 6

(b)Specific Offense Characteristic

(1)If the retail value of the infringing items exceeded $2,000, increase by the corresponding number of levels from the table in 2F1.1 (Fraud and Deceit).

Commentary

Statutory Provisions: 17 U.S.C. 506(a); 18 U.S.C. 2318-2320, 2511. For additional statutory provision(s), see Appendix A (Statutory Index).

Application Note:

1."Infringing items" means the items that violate the copyright or trademark laws (not the legitimate items that are infringed upon).

Background: This guideline treats copyright and trademark violations much like fraud. Note that the enhancement is based on the value of the infringing items, which will generally exceed the loss or gain due to the offense.

The Electronic Communications Act of 1986 prohibits the interception of satellite transmission for purposes of direct or indirect commercial advantage or private financial gain. Such violations are similar to copyright offenses and are therefore covered by this guideline.

Historical Note: Effective November 1, 1987. Amended effective November 1, 1993 (see Appendix C, amendments 481 and 482).

2B5.4. [Deleted]

Historical Note: Section 2B5.4 (Criminal Infringement of Trademark), effective November 1, 1987, was deleted by consolidation with 2B5.3 effective November 1, 1993 (see Appendix C, amendment 481).

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6.MOTOR VEHICLE IDENTIFICATION NUMBERS

2B6.1.Altering or Removing Motor Vehicle Identification Numbers, or Trafficking in Motor Vehicles or Parts with Altered or Obliterated Identification Numbers

(a)Base Offense Level: 8

(b)Specific Offense Characteristics

(1)If the retail value of the motor vehicles or parts involved exceeded $2,000, increase the offense level by the corresponding number of levels from the table in 2F1.1 (Fraud and Deceit).

(2)If the defendant was in the business of receiving and selling stolen property, increase by 2 levels.

(3)If the offense involved an organized scheme to steal vehicles or vehicle parts, or to receive stolen vehicles or vehicle parts, and the offense level as determined above is less than level 14, increase to level 14.

Commentary

Statutory Provisions: 18 U.S.C. 511, 553(a)(2), 2321.

Application Notes:

1.Subsection (b)(3), referring to an "organized scheme to steal vehicles or vehicle parts, or to receive stolen vehicles or vehicle parts," provides an alternative minimum measure of loss in the case of an ongoing, sophisticated operation such as an auto theft ring or "chop shop." "Vehicles" refers to all forms of vehicles, including aircraft and watercraft. See Commentary to 2B1.1 (Larceny, Embezzlement, and Other Forms of Theft).

2.The "corresponding number of levels from the table in 2F1.1 (Fraud and Deceit)," as used in subsection (b)(1), refers to the number of levels corresponding to the retail value of the motor vehicles or parts involved.

Background: The statutes covered in this guideline prohibit altering or removing motor vehicle identification numbers, importing or exporting, or trafficking in motor vehicles or parts knowing that the identification numbers have been removed, altered, tampered with, or obliterated. Violations of 18 U.S.C. 511 and 553(a)(2) carry a maximum of five years imprisonment. Violations of 18 U.S.C. 2321 carry a maximum of ten years imprisonment.

Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendments 117-119); November 1, 1993 (see Appendix C, amendment 482).


United States Sentencing Commission