2005 Federal Sentencing Guidelines
Chapter 2 - PART
H - OFFENSES INVOLVING INDIVIDUAL RIGHTS
§2H1.1. Offenses Involving Individual Rights
(a) Base Offense Level (Apply the Greatest):
(1) the offense level from the offense guideline applicable to any underlying
(2) 12, if the offense involved two
or more participants;
(3) 10, if the offense involved (A)
the use or threat of force against a person; or (B) property damage or the
threat of property damage; or
(4) 6, otherwise.
(b) Specific Offense Characteristic
(1) If (A) the defendant was a public official at the time of the offense;
or (B) the offense was committed under color of law, increase by 6 levels.
Statutory Provisions: 18
U.S.C. §§ 241, 242, 245(b), 246, 247, 248, 1091; 42 U.S.C. § 3631.
1. "Offense guideline applicable to any underlying offense"
means the offense guideline applicable to any conduct established by the offense
of conviction that constitutes an offense under federal, state, or local
law (other than an offense that is itself covered under Chapter Two, Part H,
In certain cases, conduct set forth in the count of conviction may constitute
more than one underlying offense (e.g.,
two instances of assault, or one instance of assault and one instance of arson).
In such cases, use the following comparative procedure to determine the applicable
base offense level: (i) determine the underlying offenses encompassed within
the count of conviction as if the defendant had been charged with a conspiracy
to commit multiple offenses. See Application
Note 4 of §1B1.2 (Applicable Guidelines); (ii) determine the Chapter Two
offense level (i.e., the base
offense level, specific offense characteristics, cross references, and special
instructions) for each such underlying offense; and (iii) compare each of the
Chapter Two offense levels determined above with the alternative base offense
level under subsection (a)(2), (3), or (4). The determination of the applicable
alternative base offense level is to be based on the entire conduct underlying
the count of conviction (i.e.,
the conduct taken as a whole). Use the alternative base offense level only
if it is greater than each of the Chapter Two offense levels determined above.
Otherwise, use the Chapter Two offense levels for each of the underlying offenses
(with each underlying offense treated as if contained in a separate count of
conviction). Then apply subsection (b) to the alternative base offense level,
or to the Chapter Two offense levels for each of the underlying offenses, as
2. "Participant" is defined in the Commentary to §3B1.1 (Aggravating
3. The burning or defacement of a religious symbol with an intent to intimidate
shall be deemed to involve the threat of force against a person for the purposes
of subsection (a)(3)(A).
4. If the finder of fact at trial or, in the case of a plea of guilty or nolo contendere,
the court at sentencing determines beyond a reasonable doubt that the defendant
intentionally selected any victim or any property as the object of the offense
because of the actual or perceived race, color, religion, national origin,
ethnicity, gender, disability, or sexual orientation of any person, an additional
3-level enhancement from §3A1.1(a) will apply. An adjustment from
§3A1.1(a) will not apply, however, if a 6-level adjustment from
§2H1.1(b) applies. See §3A1.1(c).
5. If subsection (b)(1) applies, do not apply §3B1.3 (Abuse of Position
of Trust or Use of Special Skill).
Historical Note: Effective
November 1, 1987. Amended effective November 1, 1989 (see Appendix
C, amendment 303); November 1, 1990 (see Appendix
C, amendments 313 and 327); November 1, 1991 (see Appendix
C, amendment 430); November 1, 1995 (see Appendix
C, amendment 521); November 1, 2000 (see Appendix
C, amendment 591).