CHAPTER TWO - OFFENSE CONDUCT


PART P - OFFENSES INVOLVING PRISONS AND CORRECTIONAL FACILITIES


§2P1.2.     Providing or Possessing Contraband in Prison 

(a)       Base Offense Level:

(1)       23, if the object was a firearm or destructive device.

(2)       13, if the object was a weapon (other than a firearm or a destructive device), any object that might be used as a weapon or as a means of facilitating escape, ammunition, LSD, PCP, methamphetamine, or a narcotic drug.

(3)       6, if the object was an alcoholic beverage, United States or foreign currency, a mobile phone or similar device, or a controlled substance (other than LSD, PCP, methamphetamine, or a narcotic drug).

(4)       4, if the object was any other object that threatened the order, discipline, or security of the institution or the life, health, or safety of an individual.

(b)      Specific Offense Characteristic

(1)       If the defendant was a law enforcement or correctional officer or employee, or an employee of the Department of Justice, at the time of the offense, increase by 2 levels.

(c)       Cross Reference

(1)       If the object of the offense was the distribution of a controlled substance, apply the offense level from §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking; Attempt or Conspiracy).  Provided, that if the defendant is convicted under 18 U.S.C. § 1791(a)(1) and is punishable under 18 U.S.C. § 1791(b)(1), and the resulting offense level is less than level 26, increase to level 26.


Commentary

Statutory Provision:  18 U.S.C. § 1791.

Application Notes:

1.      In this guideline, the term "mobile phone or similar device" means a phone or other device as described in 18 U.S.C. § 1791(d)(1)(F).

2.      If the adjustment in §2P1.2(b)(1) applies, no adjustment is to be made under §3B1.3 (Abuse of Position of Trust or Use of Special Skill).

3.      In a case in which the defendant is convicted of the underlying offense and an offense involving providing or possessing a controlled substance in prison, group the offenses together under §3D1.2(c).  (Note that 18 U.S.C. § 1791(b) does not require a sentence of imprisonment, although if a sentence of imprisonment is imposed on a count involving providing or possessing a controlled substance in prison, section 1791(c) requires that the sentence be imposed to run consecutively to any other sentence of imprisonment for the controlled substance.  Therefore, unlike a count in which the statute mandates both a minimum and a consecutive sentence of imprisonment, the grouping rules of §§3D1.1-3D1.5 apply.  See §3D1.1(b)(1), comment. (n.1), and §3D1.2, comment. (n.1).)  The combined sentence will then be constructed to provide a "total punishment" that satisfies the requirements both of §5G1.2 (Sentencing on Multiple Counts of Conviction) and 18 U.S.C. § 1791(c).  For example, if the combined applicable guideline range for both counts is 30-37 months and the court determines a "total punishment" of 36 months is appropriate, a sentence of 30 months for the underlying offense plus a consecutive six months' sentence for the providing or possessing a controlled substance in prison count would satisfy these requirements.

Pursuant to 18 U.S.C. § 1791(c), a sentence imposed upon an inmate for a violation of 18 U.S.C. § 1791 shall be consecutive to the sentence being served by the inmate at the time of the violation.

Historical Note:  Effective November 1, 1987.  Amended effective November 1, 1989 (see Appendix C, amendments 202 and 203); November 1, 1995 (see Appendix C, amendment 525); November 1, 1998 (see Appendix C, amendment 579); November 1, 2005 (see Appendix C, amendment 680); November 1, 2012 (see Appendix C, amendment 769).