1995 Guidelines Manual

Chapter Two - PART N - OFFENSES INVOLVING FOOD, DRUGS, AGRICULTURAL PRODUCTS, AND ODOMETER LAWS

1.TAMPERING WITH CONSUMER PRODUCTS

2N1.1.Tampering or Attempting to Tamper Involving Risk of Death or Bodily Injury

(a)Base Offense Level: 25

(b)Specific Offense Characteristic

(1)(A) If any victim sustained permanent or life-threatening bodily injury, increase by 4 levels; (B) if any victim sustained serious bodily injury, increase by 2 levels; or (C) if the degree of injury is between that specified in subdivisions (A) and (B), increase by 3 levels.

(c)Cross References

(1)If the offense resulted in death, apply 2A1.1 (First Degree Murder) if the death was caused intentionally or knowingly, or 2A1.2 (Second Degree Murder) in any other case.

(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.

(3)If the offense involved extortion, apply 2B3.2 (Extortion by Force or Threat of Injury or Serious Damage) if the resulting offense level is greater than that determined above.

(d)Special Instruction

(1)If the defendant is convicted of a single count involving (A) the death or permanent, life-threatening, or serious bodily injury of more than one victim, or (B) conduct tantamount to the attempted murder of more than one victim, Chapter Three, Part D (Multiple Counts) shall be applied as if the defendant had been convicted of a separate count for each such victim.

Commentary

Statutory Provisions: 18 U.S.C. 1365(a), (e).

Application Notes:

1.The base offense level reflects that this offense typically poses a risk of death or serious bodily injury to one or more victims; or causes, or is intended to cause, bodily injury. Where the offense posed a substantial risk of death or serious bodily injury to numerous victims, or caused extreme psychological injury or substantial property damage or monetary loss, an upward departure may be warranted. In the unusual case in which the offense did not cause a risk of death or serious bodily injury, and neither caused nor was intended to cause bodily injury, a downward departure may be warranted.

2.The special instruction in subsection (d)(1) applies whether the offense level is determined under subsection (b)(1) or by use of a cross reference in subsection (c).

Historical Note: Effective November 1, 1987. Amended effective November 1, 1990 (see Appendix C, amendment 338); November 1, 1991 (see Appendix C, amendment 376).

2N1.2.Providing False Information or Threatening to Tamper with Consumer Products

(a)Base Offense Level: 16

(b)Cross Reference

(1)If the offense involved extortion, apply 2B3.2 (Extortion by Force or Threat of Injury or Serious Damage).

Commentary

Statutory Provisions: 18 U.S.C. 1365(c), (d).

Application Note:

1.If death or bodily injury, extreme psychological injury, or substantial property damage or monetary loss resulted, an upward departure may be warranted. See Chapter Five, Part K (Departures).

Historical Note: Effective November 1, 1987. Amended effective November 1, 1990 (see Appendix C, amendment 339).

2N1.3.Tampering With Intent to Injure Business

(a)Base Offense Level: 12

Commentary

Statutory Provision: 18 U.S.C. 1365(b).

Application Note:

1.If death or bodily injury, extreme psychological injury, or substantial property damage or monetary loss resulted, an upward departure may be warranted. See Chapter Five, Part K (Departures).

Historical Note: Effective November 1, 1987.

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2.FOOD, DRUGS, AND AGRICULTURAL PRODUCTS

2N2.1.Violations of Statutes and Regulations Dealing With Any Food, Drug, Biological Product, Device, Cosmetic, or Agricultural Product

(a)Base Offense Level: 6

(b)Cross References

(1)If the offense involved fraud, apply 2F1.1 (Fraud and Deceit).

(2)If the offense was committed in furtherance of, or to conceal, an offense covered by another offense guideline, apply that other offense guideline if the resulting offense level is greater than that determined above.

Commentary

Statutory Provisions: 7 U.S.C. 150bb, 150gg; 21 U.S.C. 115, 117, 122, 134-134e, 151-158, 331, 333(a)(1), (a)(2), (b), 458-461, 463, 466, 610, 611, 614, 617, 619, 620, 642-644, 676; 42 U.S.C. 262. For additional statutory provision(s), see Appendix A (Statutory Index).

Application Notes:

1.This guideline assumes a regulatory offense that involved knowing or reckless conduct. Where only negligence was involved, a downward departure may be warranted. See Chapter Five, Part K (Departures).

2.The cross reference at subsection (b)(1) addresses cases in which the offense involved fraud. The cross reference at subsection (b)(2) addresses cases in which the offense was committed in furtherance of, or to conceal, an offense covered by another offense guideline (e.g., theft, bribery, revealing trade secrets, or destruction of property).

3.If death or bodily injury, extreme psychological injury, property damage or monetary loss resulted, an upward departure may be warranted. See Chapter Five, Part K (Departures).

4.The Commission has not promulgated a guideline for violations of 21 U.S.C. 333(e) (offenses involving human growth hormones). Offenses involving anabolic steroids are covered by Chapter Two, Part D (Offenses Involving Drugs). In the case of an offense involving a substance purported to be an anabolic steroid, but not containing any active ingredient, apply 2F1.1 (Fraud and Deceit) with "loss" measured by the amount paid, or to be paid, by the victim for such substance.

Historical Note: Effective November 1, 1987. Amended effective November 1, 1990 (see Appendix C, amendment 340); November 1, 1991 (see Appendix C, amendment 432); November 1, 1992 (see Appendix C, amendment 451).

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3.ODOMETER LAWS AND REGULATIONS

2N3.1.Odometer Laws and Regulations

(a)Base Offense Level: 6

(b)Cross Reference

(1)If the offense involved more than one vehicle, apply 2F1.1 (Fraud and Deceit).

Commentary

Statutory Provisions: 15 U.S.C. 1983-1988, 1990c.

Background: The base offense level takes into account the deceptive aspect of the offense assuming a single vehicle was involved. If more than one vehicle was involved, the guideline for fraud and deception, 2F1.1, is to be applied because it is designed to deal with a pattern or scheme.

Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendment 199).


United States Sentencing Commission