CHAPTER TWO - OFFENSE CONDUCT


PART B - BASIC ECONOMIC OFFENSES

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 (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)       If the defendant (A) 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; or (B) controlled or possessed (i) counterfeiting paper similar to a distinctive paper; (ii) genuine United States currency paper from which the ink or other distinctive counterfeit deterrent has been completely or partially removed; or (iii) a feature or device essentially identical to a distinctive counterfeit deterrent, increase by 2 levels.

(3)       If subsection (b)(2)(A) applies, and the offense level determined under that subsection is less than level 15, increase to level 15.

(4)       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.

(5)       If any part of the offense was committed outside the United States, increase by 2 levels.


Commentary

Statutory Provisions:  18 U.S.C. §§ 470-474A, 476, 477, 500, 501, 1003.  For additional statutory provision(s), see Appendix A (Statutory Index).

Application Notes:

1.      Definitions.—For purposes of this guideline:

"Counterfeit" refers to an instrument that has been falsely made, manufactured, or altered.  For example, an instrument that has been falsely made or manufactured in its entirety is "counterfeit", as is a genuine instrument that has been falsely altered (such as a genuine $5 bill that has been altered to appear to be a genuine $100 bill).

"Distinctive counterfeit deterrent" and "distinctive paper" have the meaning given those terms in 18 U.S.C. § 474A(c)(2) and (1), respectively.

"United States" means each of the fifty states, the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands, Guam, the Northern Mariana Islands, and American Samoa.

2.      Applicability to Counterfeit Bearer Obligations of the United States.—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. 

3.      Inapplicability to Certain Obviously Counterfeit Items.—Subsection (b)(2)(A) does not apply to persons who 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)(4) 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); November 1, 1997 (see Appendix C, amendment 554);  November 1, 1998 (see Appendix C, amendment 587); November 1, 2000 (see Appendix C, amendments 595 and 605); November 1, 2001 (see Appendix C, amendments 617 and 618); November 1, 2009 (see Appendix C, amendment 731).