2012 GUIDELINES MANUAL
CHAPTER TWO - OFFENSE CONDUCT
PART C - OFFENSES INVOLVING PUBLIC OFFICIALS AND VIOLATIONS OF FEDERAL ELECTION CAMPAIGN LAWS
§2C1.2. Offering, Giving, Soliciting, or Receiving a Gratuity
(a) Base Offense Level:
(1) 11, if the defendant was a public official; or
(2) 9, otherwise.
(b) Specific Offense Characteristics
(1) If the offense involved more than one gratuity, increase by 2 levels.
(2) If the value of the gratuity exceeded $5,000, increase by the number of levels from the table in §2B1.1 (Theft, Property Destruction, and Fraud) corresponding to that amount.
(3) If the offense involved an elected public official or any public official in a high-level decision-making or sensitive position, increase by 4 levels. If the resulting offense level is less than level 15, increase to level 15.
(4) If the defendant was a public official who facilitated (A) entry into the United States for a person, a vehicle, or cargo; (B) the obtaining of a passport or a document relating to naturalization, citizenship, legal entry, or legal resident status; or (C) the obtaining of a government identification document, increase by 2 levels.
(c) Special Instruction for Fines - Organizations
(1) In lieu of the pecuniary loss under subsection (a)(3) of §8C2.4 (Base Fine), use the value of the unlawful payment.
Statutory Provisions: 18 U.S.C. §§ 201(c)(1), 212-214, 217. For additional statutory provision(s), see Appendix A (Statutory Index).
1. Definitions.—For purposes of this guideline:
"Government identification document" means a document made or issued by or under the authority of the United States Government, a State, or a political subdivision of a State, which, when completed with information concerning a particular individual, is of a type intended or commonly accepted for the purpose of identification of individuals.
"Public official" shall be construed broadly and includes the following:
(A) "Public official" as defined in 18 U.S.C. § 201(a)(1).
(B) A member of a state or local legislature. "State" means a State of the United States, and any commonwealth, territory, or possession of the United States.
(C) An officer or employee or person acting for or on behalf of a state or local government, or any department, agency, or branch of government thereof, in any official function, under or by authority of such department, agency, or branch of government, or a juror.
(D) Any person who has been selected to be a person described in subdivisions (A), (B), or (C), either before or after such person has qualified.
(E) An individual who, although not otherwise covered by subdivisions (A) through (D): (i) is in a position of public trust with official responsibility for carrying out a government program or policy; (ii) acts under color of law or official right; or (iii) participates so substantially in government operations as to possess de facto authority to make governmental decisions (e.g., which may include a leader of a state or local political party who acts in the manner described in this subdivision).
2. Application of Subsection (b)(1).—Related payments that, in essence, constitute a single gratuity (e.g., separate payments for airfare and hotel for a single vacation trip) are to be treated as a single gratuity, even if charged in separate counts.
3. Application of Subsection (b)(3).—
(A) Definition.—"High-level decision-making or sensitive position" means a position characterized by a direct authority to make decisions for, or on behalf of, a government department, agency, or other government entity, or by a substantial influence over the decision-making process.
(B) Examples.—Examples of a public official in a high-level decision-making position include a prosecuting attorney, a judge, an agency administrator, a law enforcement officer, and any other public official with a similar level of authority. Examples of a public official who holds a sensitive position include a juror, a law enforcement officer, an election official, and any other similarly situated individual.
4. Inapplicability of §3B1.3.—Do not apply the adjustment in §3B1.3 (Abuse of Position of Trust or Use of Special Skill).
Background: This section applies to the offering, giving, soliciting, or receiving of a gratuity to a public official in respect to an official act. It also applies in cases involving (1) the offer to, or acceptance by, a bank examiner of a loan or gratuity; (2) the offer or receipt of anything of value for procuring a loan or discount of commercial bank paper from a Federal Reserve Bank; and (3) the acceptance of a fee or other consideration by a federal employee for adjusting or cancelling a farm debt.
Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendment 121); November 1, 1991 (see Appendix C, amendment 422); November 1, 1995 (see Appendix C, amendment 534); November 1, 2001 (see Appendix C, amendment 617); November 1, 2004 (see Appendix C, amendment 666); November 1, 2010 (see Appendix C, amendment 746).