1995 Guideline Manual

Chapter Two - PART M - OFFENSES INVOLVING NATIONAL DEFENSE

1. TREASON

2M1.1.Treason

(a)Base Offense Level:

(1)43, if the conduct is tantamount to waging war against the United States;

(2)the offense level applicable to the most analogous offense, otherwise.

Commentary

Statutory Provision: 18 U.S.C. 2381.

Background: Treason is a rarely prosecuted offense that could encompass a relatively broad range of conduct, including many of the more specific offenses in this Part. The guideline contemplates imposition of the maximum penalty in the most serious cases, with reference made to the most analogous offense guideline in lesser cases.

Historical Note: Effective November 1, 1987.

* * * * *

2.SABOTAGE

2M2.1.Destruction of, or Production of Defective, War Material, Premises, or Utilities

(a)Base Offense Level: 32

Commentary

Statutory Provisions: 18 U.S.C. 2153, 2154; 42 U.S.C. 2284.

Application Note:

1.Violations of 42 U.S.C. 2284 are included in this section where the defendant was convicted of acting with intent to injure the United States or aid a foreign nation.

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

2M2.2. [Deleted]

Historical Note: Section 2M2.2 (Production of Defective War Material, Premises, or Utilities), effective November 1, 1987, was deleted by consolidation with 2M2.1 effective November 1, 1993 (see Appendix C, amendment 481).

2M2.3.Destruction of, or Production of Defective, National Defense Material, Premises, or Utilities

(a)Base Offense Level: 26

Commentary

Statutory Provisions: 18 U.S.C. 2155, 2156; 42 U.S.C. 2284.

Application Note:

1.Violations of 42 U.S.C. 2284 not included in 2M2.1 are included in this section.

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

2M2.4. [Deleted]

Historical Note: Section 2M2.4 (Production of Defective National Defense Material, Premises, or Utilities), effective November 1, 1987, was deleted by consolidation with 2M2.3 effective November 1, 1993 (see Appendix C, amendment 481).

* * * * *

3.ESPIONAGE AND RELATED OFFENSES

2M3.1.Gathering or Transmitting National Defense Information to Aid a Foreign Government

(a)Base Offense Level:

(1)42, if top secret information was gathered or transmitted; or

(2)37, otherwise.

Commentary

Statutory Provisions: 18 U.S.C. 794; 42 U.S.C. 2274(a), (b), 2275.

Application Notes:

1."Top secret information" is information that, if disclosed, "reasonably could be expected to cause exceptionally grave damage to the national security." Executive Order 12356.

2.The Commission has set the base offense level in this subpart on the assumption that the information at issue bears a significant relation to the nation's security, and that the revelation will significantly and adversely affect security interests. When revelation is likely to cause little or no harm, a downward departure may be warranted. See Chapter Five, Part K (Departures).

3.The court may depart from the guidelines upon representation by the President or his duly authorized designee that the imposition of a sanction other than authorized by the guideline is necessary to protect national security or further the objectives of the nation's foreign policy.

Background: Offense level distinctions in this subpart are generally based on the classification of the information gathered or transmitted. This classification, in turn, reflects the importance of the information to the national security.

Historical Note: Effective November 1, 1987.

2M3.2.Gathering National Defense Information

(a)Base Offense Level:

(1)35, if top secret information was gathered; or

(2)30, otherwise.

Commentary

Statutory Provisions: 18 U.S.C. 793(a), (b), (c), (d), (e), (g). For additional statutory provision(s), see Appendix A (Statutory Index).

Application Notes:

1.See Commentary to 2M3.1.

2.If the defendant is convicted under 18 U.S.C. 793(d) or (e), 2M3.3 may apply. See Commentary to 2M3.3.

Background: The statutes covered in this section proscribe diverse forms of obtaining and transmitting national defense information with intent or reason to believe the information would injure the United States or be used to the advantage of a foreign government.

Historical Note: Effective November 1, 1987.

2M3.3.Transmitting National Defense Information; Disclosure of Classified Cryptographic Information; Unauthorized Disclosure to a Foreign Government or a Communist Organization of Classified Information by Government Employee; Unauthorized Receipt of Classified Information

(a)Base Offense Level:

(1)29, if top secret information; or

(2)24, otherwise.

Commentary

Statutory Provisions: 18 U.S.C. 793(d), (e), (g), 798; 50 U.S.C. 783(b), (c).

Application Notes:

1.See Commentary to 2M3.1.

2.If the defendant was convicted of 18 U.S.C. 793(d) or (e) for the willful transmission or communication of intangible information with reason to believe that it could be used to the injury of the United States or the advantage of a foreign nation, apply 2M3.2.

Background: The statutes covered in this section proscribe willfully transmitting or communicating to a person not entitled to receive it a document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense. Proof that the item was communicated with reason to believe that it could be used to the injury of the United States or the advantage of a foreign nation is required only where intangible information is communicated under 18 U.S.C. 793(d) or (e).

This section also covers statutes that proscribe the disclosure of classified information concerning cryptographic or communication intelligence to the detriment of the United States or for the benefit of a foreign government, the unauthorized disclosure to a foreign government or a communist organization of classified information by a government employee, and the unauthorized receipt of classified information.

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

2M3.4.Losing National Defense Information

(a)Base Offense Level:

(1)18, if top secret information was lost; or

(2)13, otherwise.

Commentary

Statutory Provision: 18 U.S.C. 793(f).

Application Note:

1.See Commentary to 2M3.1.

Background: Offenses prosecuted under this statute generally do not involve subversive conduct on behalf of a foreign power, but rather the loss of classified information by the gross negligence of an employee of the federal government or a federal contractor.

Historical Note: Effective November 1, 1987.

2M3.5.Tampering with Restricted Data Concerning Atomic Energy

(a)Base Offense Level: 24

Commentary

Statutory Provision: 42 U.S.C. 2276.

Application Note:

1.See Commentary to 2M3.1.

Historical Note: Effective November 1, 1987.

2M3.6. [Deleted]

Historical Note: Section 2M3.6 (Disclosure of Classified Cryptographic Information), effective November 1, 1987, was deleted by consolidation with 2M3.3 effective November 1, 1993 (see Appendix C, amendment 481).

2M3.7. [Deleted]

Historical Note: Section 2M3.7 (Unauthorized Disclosure to Foreign Government or a Communist Organization of Classified Information by Government Employee), effective November 1, 1987, was deleted by consolidation with 2M3.3 effective November 1, 1993 (see Appendix C, amendment 481).

2M3.8. [Deleted]

Historical Note: Section 2M3.8 (Receipt of Classified Information), effective November 1, 1987, was deleted by consolidation with 2M3.3 effective November 1, 1993 (see Appendix C, amendment 481).

2M3.9.Disclosure of Information Identifying a Covert Agent

(a)Base Offense Level:

(1)30, if the information was disclosed by a person with, or who had authorized access to classified information identifying a covert agent; or

(2)25, if the information was disclosed by a person with authorized access only to other classified information.

Commentary

Statutory Provision: 50 U.S.C. 421.

Application Notes:

1.See Commentary to 2M3.1.

2.This guideline applies only to violations of 50 U.S.C. 421 by persons who have or previously had authorized access to classified information. This guideline does not apply to violations of 50 U.S.C. 421 by defendants, including journalists, who disclosed such information without having or having had authorized access to classified information. Violations of 50 U.S.C. 421 not covered by this guideline may vary in the degree of harm they inflict, and the court should impose a sentence that reflects such harm. See 2X5.1 (Other Offenses).

Background: The alternative base offense levels reflect a statutory distinction by providing a greater base offense level for a violation of 50 U.S.C. 421 by an official who has or had authorized access to classified information identifying a covert agent than for a violation by an official with authorized access only to other classified information. This guideline does not apply to violations of 50 U.S.C. 421 by defendants who disclosed such information without having, or having had, authorized access to classified information.

Historical Note: Effective November 1, 1987.

* * * * *

4. EVASION OF MILITARY SERVICE

2M4.1.Failure to Register and Evasion of Military Service

(a)Base Offense Level: 6

(b)Specific Offense Characteristic

(1)If the offense occurred at a time when persons were being inducted for compulsory military service, increase by 6 levels.

Commentary

Statutory Provision: 50 U.S.C. App. 462.

Application Note:

1.Subsection (b)(1) does not distinguish between whether the offense was committed in peacetime or during time of war or armed conflict. If the offense was committed when persons were being inducted for compulsory military service during time of war or armed conflict, an upward departure may be warranted.

Historical Note: Effective November 1, 1987. Amended effective November 1, 1990 (see Appendix C, amendment 336).

* * * * *

5.PROHIBITED FINANCIAL TRANSACTIONS AND EXPORTS

2M5.1.Evasion of Export Controls

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

(1)22, if national security or nuclear proliferation controls were evaded; or

(2)14.

Commentary

Statutory Provisions: 50 U.S.C. App. 2401-2420.

Application Notes:

1.In the case of a violation during time of war or armed conflict, an upward departure may be warranted.

2.In determining the sentence within the applicable guideline range, the court may consider the degree to which the violation threatened a security interest of the United States, the volume of commerce involved, the extent of planning or sophistication, and whether there were multiple occurrences. Where such factors are present in an extreme form, a departure from the guidelines may be warranted. See Chapter Five, Part K (Departures).

3.In addition to the provisions for imprisonment, 50 U.S.C. App. 2410 contains provisions for criminal fines and forfeiture as well as civil penalties. The maximum fine for individual defendants is $250,000. In the case of corporations, the maximum fine is five times the value of the exports involved or $1 million, whichever is greater. When national security controls are violated, in addition to any other sanction, the defendant is subject to forfeiture of any interest in, security of, or claim against: any goods or tangible items that were the subject of the violation; property used to export or attempt to export that was the subject of the violation; and any proceeds obtained directly or indirectly as a result of the violation.

Historical Note: Effective November 1, 1987.

2M5.2.Exportation of Arms, Munitions, or Military Equipment or Services Without Required Validated Export License

(a)Base Offense Level:

(1)22, except as provided in subdivision (2) below;

(2)14, if the offense involved only non-fully automatic small arms (rifles, handguns, or shotguns), and the number of weapons did not exceed ten.

Commentary

Statutory Provisions: 22 U.S.C. 2778, 2780.

Application Notes:

1.Under 22 U.S.C. 2778, the President is authorized, through a licensing system administered by the Department of State, to control exports of defense articles and defense services that he deems critical to a security or foreign policy interest of the United States. The items subject to control constitute the United States Munitions List, which is set out in 22 C.F.R. Part 121.1. Included in this list are such things as military aircraft, helicopters, artillery, shells, missiles, rockets, bombs, vessels of war, explosives, military and space electronics, and certain firearms.

The base offense level assumes that the offense conduct was harmful or had the potential to be harmful to a security or foreign policy interest of the United States. In the unusual case where the offense conduct posed no such risk, a downward departure may be warranted. In the case of a violation during time of war or armed conflict, an upward departure may be warranted. See Chapter Five, Part K (Departures).

2.In determining the sentence within the applicable guideline range, the court may consider the degree to which the violation threatened a security or foreign policy interest of the United States, the volume of commerce involved, the extent of planning or sophistication, and whether there were multiple occurrences. Where such factors are present in an extreme form, a departure from the guidelines may be warranted.

Historical Note: Effective November 1, 1987. Amended effective November 1, 1990 (see Appendix C, amendment 337).

* * * * *

6.ATOMIC ENERGY

2M6.1.Unlawful Acquisition, Alteration, Use, Transfer, or Possession of Nuclear Material, Weapons, or Facilities

(a)Base Offense Level: 30

(b)Specific Offense Characteristic

(1)If the offense was committed with intent to injure the United States or to aid a foreign nation, increase by 12 levels.

Commentary

Statutory Provisions: 42 U.S.C. 2077(b), 2122, 2131. Also, 18 U.S.C. 831 (only where the conduct is similar to that proscribed by the aforementioned statutory provisions). For additional statutory provision(s), see Appendix A (Statutory Index).

Historical Note: Effective November 1, 1987.

2M6.2.Violation of Other Federal Atomic Energy Agency Statutes, Rules, and Regulations

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

(1)30, if the offense was committed with intent to injure the United States or to aid a foreign nation; or

(2)6.

Commentary

Statutory Provision: 42 U.S.C. 2273.

Background: This section applies to offenses related to nuclear energy not specifically addressed elsewhere. This provision covers, for example, violations of statutes dealing with rules and regulations, license conditions, and orders of the Nuclear Regulatory Commission and the Department of Energy.

Historical Note: Effective November 1, 1987. Amended effective November 1, 1990 (see Appendix C, amendment 359).


United States Sentencing Commission