CHAPTER THREE - ADJUSTMENTS


PART A - VICTIM-RELATED ADJUSTMENTS


Introductory Commentary

The following adjustments are included in this Part because they may apply to a wide variety of offenses.

Historical Note:  Effective November 1, 1987.  Amended effective November 1, 1990 (see Appendix C, amendment 344).


§3A1.1.     Hate Crime Motivation or Vulnerable Victim

(a)       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 of conviction because of the actual or perceived race, color, religion, national origin, ethnicity, gender, gender identity, disability, or sexual orientation of any person, increase by 3 levels.

(b)      (1)       If the defendant knew or should have known that a victim of the offense was a vulnerable victim, increase by 2 levels. 

(2)       If (A) subdivision (1) applies; and (B) the offense involved a large number of vulnerable victims, increase the offense level determined under subdivision (1) by 2 additional levels.

(c)       Special Instruction

(1)       Subsection (a) shall not apply if an adjustment from §2H1.1(b)(1) applies.


Commentary

Application Notes:

1.      Subsection (a) applies to offenses that are hate crimes.  Note that special evidentiary requirements govern the application of this subsection.

Do not apply subsection (a) on the basis of gender in the case of a sexual offense.  In such cases, this factor is taken into account by the offense level of the Chapter Two offense guideline.  Moreover, do not apply subsection (a) if an adjustment from §2H1.1(b)(1) applies.

2.      For purposes of subsection (b), "vulnerable victim" means a person (A) who is a victim of the offense of conviction and any conduct for which the defendant is accountable under §1B1.3 (Relevant Conduct); and (B) who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct.

Subsection (b) applies to offenses involving an unusually vulnerable victim in which the defendant knows or should have known of the victim’s unusual vulnerability.  The adjustment would apply, for example, in a fraud case in which the defendant marketed an ineffective cancer cure or in a robbery in which the defendant selected a handicapped victim.  But it would not apply in a case in which the defendant sold fraudulent securities by mail to the general public and one of the victims happened to be senile.  Similarly, for example, a bank teller is not an unusually vulnerable victim solely by virtue of the teller’s position in a bank.

Do not apply subsection (b) if the factor that makes the person a vulnerable victim is incorporated in the offense guideline.  For example, if the offense guideline provides an enhancement for the age of the victim, this subsection would not be applied unless the victim was unusually vulnerable for reasons unrelated to age.

3.      The adjustments from subsections (a) and (b) are to be applied cumulatively.  Do not, however, apply subsection (b) in a case in which subsection (a) applies unless a victim of the offense was unusually vulnerable for reasons unrelated to race, color, religion, national origin, ethnicity, gender, gender identity, disability, or sexual orientation.

4.      If an enhancement from subsection (b) applies and the defendant’s criminal history includes a prior sentence for an offense that involved the selection of a vulnerable victim, an upward departure may be warranted.

5.      For purposes of this guideline, "gender identity" means actual or perceived gender-related characteristics.  See 18 U.S.C. § 249(c)(4).

Background:  Subsection (a) reflects the directive to the Commission, contained in Section 280003 of the Violent Crime Control and Law Enforcement Act of 1994, to provide an enhancement of not less than three levels for an offense when the finder of fact at trial determines beyond a reasonable doubt that the defendant had a hate crime motivation.  To avoid unwarranted sentencing disparity based on the method of conviction, the Commission has broadened the application of this enhancement to include offenses that, in the case of a plea of guilty or nolo contendere, the court at sentencing determines are hate crimes.  In section 4703(a) of Public Law 111–84, Congress broadened the scope of that directive to include gender identity; to reflect that congressional action, the Commission has broadened the scope of this enhancement to include gender identity.

Subsection (b)(2) implements, in a broader form, the instruction to the Commission in section 6(c)(3) of Public Law 105-184.

Historical Note:  Effective November 1, 1987.  Amended effective November 1, 1989 (see Appendix C, amendment 245); November 1, 1990 (see Appendix C, amendment 344); November 1, 1992 (see Appendix C, amendment 454); November 1, 1995 (see Appendix C, amendment 521); November 1, 1997 (see Appendix C, amendment 564); November 1, 1998 (see Appendix C, amendment 587); November 1, 2000 (see Appendix C, amendment 595); November 1, 2010 (see Appendix C, amendment 743).


§3A1.2.     Official Victim

(Apply the greatest):

(a)       If (1) the victim was (A) a government officer or employee; (B) a former government officer or employee; or (C) a member of the immediate family of a person described in subdivision (A) or (B); and (2) the offense of conviction was motivated by such status, increase by 3 levels.

(b)      If subsection (a)(1) and (2) apply, and the applicable Chapter Two guideline is from Chapter Two, Part A (Offenses Against the Person), increase by 6 levels.

(c)       If, in a manner creating a substantial risk of serious bodily injury, the defendant or a person for whose conduct the defendant is otherwise accountable—

(1)       knowing or having reasonable cause to believe that a person was a law enforcement officer, assaulted such officer during the course of the offense or immediate flight therefrom; or

(2)       knowing or having reasonable cause to believe that a person was a prison official, assaulted such official while the defendant (or a person for whose conduct the defendant is otherwise accountable) was in the custody or control of a prison or other correctional facility,

increase by 6 levels.


Commentary

Application Notes:

1.      Applicability to Certain Victims.—This guideline applies when specified individuals are victims of the offense.  This guideline does not apply when the only victim is an organization, agency, or the government.

2.      Nonapplicability in Case of Incorporation of Factor in Chapter Two.—Do not apply this adjustment if the offense guideline specifically incorporates this factor. The only offense guideline in Chapter Two that specifically incorporates this factor is §2A2.4 (Obstructing or Impeding Officers).

3.      Application of Subsections (a) and (b).—"Motivated by such status", for purposes of subsections (a) and (b), means that the offense of conviction was motivated by the fact that the victim was a government officer or employee, or a member of the immediate family thereof.  This adjustment would not apply, for example, where both the defendant and victim were employed by the same government agency and the offense was motivated by a personal dispute.  This adjustment also would not apply in the case of a robbery of a postal employee because the offense guideline for robbery contains an enhancement (§2B3.1(b)(1)) that takes such conduct into account.

4.     Application of Subsection (c).—

(A)    In General.—Subsection (c) applies in circumstances tantamount to aggravated assault (i) against a law enforcement officer, committed in the course of, or in immediate flight following, another offense; or (ii) against a prison official, while the defendant (or a person for whose conduct the defendant is otherwise accountable) was in the custody or control of a prison or other correctional facility.  While subsection (c) may apply in connection with a variety of offenses that are not by nature targeted against official victims, its applicability is limited to assaultive conduct against such official victims that is sufficiently serious to create at least a "substantial risk of serious bodily injury".

(B)    Definitions.—For purposes of subsection (c):

"Custody or control" includes "non-secure custody", i.e., custody with no significant physical restraint.  For example, a defendant is in the custody or control of a prison or other correctional facility if the defendant (i) is on a work detail outside the security perimeter of the prison or correctional facility; (ii) is physically away from the prison or correctional facility while on a pass or furlough; or (iii) is in custody at a community corrections center, community treatment center, "halfway house", or similar facility.  The defendant also shall be deemed to be in the custody or control of a prison or other correctional facility while the defendant is in the status of having escaped from that prison or correctional facility.

"Prison official" means any individual (including a director, officer, employee, independent contractor, or volunteer, but not including an inmate) authorized to act on behalf of a prison or correctional facility.  For example, this enhancement would be applicable to any of the following: (i) an individual employed by a prison as a corrections officer; (ii) an individual employed by a prison as a work detail supervisor; and (iii) a nurse who, under contract, provides medical services to prisoners in a prison health facility.

"Substantial risk of serious bodily injury" includes any more serious injury that was risked, as well as actual serious bodily injury (or more serious injury) if it occurs.

5.      Upward Departure Provision.—If the official victim is an exceptionally high-level official, such as the President or the Vice President of the United States, an upward departure may be warranted due to the potential disruption of the governmental function.

Historical Note:  Effective November 1, 1987.  Amended effective January 15, 1988 (see Appendix C, amendment 44);  November 1, 1989 (see Appendix C, amendments 246-248); November 1, 1992 (see Appendix C, amendment 455); November 1, 2002 (see Appendix C, amendment 643); November 1, 2004 (see Appendix C, amendment 663); November 1, 2010 (see Appendix C, amendment 747).


§3A1.3.     Restraint of Victim

If a victim was physically restrained in the course of the offense, increase by 2 levels.


Commentary

Application Notes:

1.      "Physically restrained" is defined in the Commentary to §1B1.1 (Application Instructions).

2.      Do not apply this adjustment where the offense guideline specifically incorporates this factor, or where the unlawful restraint of a victim is an element of the offense itself (e.g., this adjustment does not apply to offenses covered by §2A4.1 (Kidnapping, Abduction, Unlawful Restraint)).

3.      If the restraint was sufficiently egregious, an upward departure may be warranted.  See §;5K2.4 (Abduction or Unlawful Restraint).

Historical Note:  Effective November 1, 1987.  Amended effective November 1, 1989 (see Appendix C, amendments 249 and 250); November 1, 1991 (see Appendix C, amendment 413).


§3A1.4.     Terrorism

(a)       If the offense is a felony that involved, or was intended to promote, a federal crime of terrorism, increase by 12 levels; but if the resulting offense level is less than level 32, increase to level 32.

(b)      In each such case, the defendant's criminal history category from Chapter Four (Criminal History and Criminal Livelihood) shall be Category VI.


Commentary

Application Notes:

1.      "Federal Crime of Terrorism" Defined.—For purposes of this guideline, "federal crime of terrorism" has the meaning given that term in 18 U.S.C. § 2332b(g)(5).

2.      Harboring, Concealing, and Obstruction Offenses.—For purposes of this guideline, an offense that involved (A) harboring or concealing a terrorist who committed a federal crime of terrorism (such as an offense under 18 U.S.C. § 2339 or § 2339A); or (B) obstructing an investigation of a federal crime of terrorism, shall be considered to have involved, or to have been intended to promote, that federal crime of terrorism.

3.      Computation of Criminal History Category.— Under subsection (b), if the defendant’s criminal history category as determined under Chapter Four (Criminal History and Criminal Livelihood) is less than Category VI, it shall be increased to Category VI.

4.      Upward Departure Provision.—By the terms of the directive to the Commission in section 730 of the Antiterrorism and Effective Death Penalty Act of 1996, the adjustment provided by this guideline applies only to federal crimes of terrorism.  However, there may be cases in which (A) the offense was calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct but the offense involved, or was intended to promote, an offense other than one of the offenses specifically enumerated in 18 U.S.C. § 2332b(g)(5)(B); or (B) the offense involved, or was intended to promote, one of the offenses specifically enumerated in 18 U.S.C. § 2332b(g)(5)(B), but the terrorist motive was to intimidate or coerce a civilian population, rather than to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.  In such cases an upward departure would be warranted, except that the sentence resulting from such a departure may not exceed the top of the guideline range that would have resulted if the adjustment under this guideline had been applied.

Historical Note:  Effective November 1, 1995 (see Appendix C, amendment 526).  Amended effective November 1, 1996 (see Appendix C, amendment 539); November 1, 1997 (see Appendix C, amendment 565); November 1, 2002 (see Appendix C, amendment 637). 


§3A1.5.    Serious Human Rights Offense

If the defendant was convicted of a serious human rights offense, increase the offense level as follows:

(a)    If the defendant was convicted of an offense under 18 U.S.C. § 1091(c), increase by 2 levels.

(b)    If the defendant was convicted of any other serious human rights offense, increase by 4 levels.  If (1) death resulted, and (2) the resulting offense level is less than level 37, increase to level 37.


Commentary

Application Notes:

1.      Definition.—For purposes of this guideline, 'serious human rights offense' means violations of federal criminal laws relating to genocide, torture, war crimes, and the use or recruitment of child soldiers under sections 1091, 2340, 2340A, 2441, and 2442 of title 18, United States Code.  See 28 U.S.C. § 509B(e).

2.      Application of Minimum Offense Level in Subsection (b).—The minimum offense level in subsection (b) is cumulative with any other provision in the guidelines.  For example, if death resulted and this factor was specifically incorporated into the Chapter Two offense guideline, the minimum offense level in subsection (b) may also apply.

Background: This guideline covers a range of conduct considered to be serious human rights offenses, including genocide, war crimes, torture, and the recruitment or use of child soldiers.  See generally 28 U.S.C. § 509B(e).

Serious human rights offenses generally have a statutory maximum term of imprisonment of 20 years, but if death resulted, a higher statutory maximum term of imprisonment of any term of years or life applies.  See 18 U.S.C. §§ 1091(b), 2340A(a), 2442(b).  For the offense of war crimes, a statutory maximum term of imprisonment of any term of years or life always applies.  See 18 U.S.C. § 2441(a).  For the offense of incitement to genocide, the statutory maximum term of imprisonment is five years.  See 18 U.S.C. § 1091(c).

Historical Note:  Effective November 1, 2012 (see Appendix C, amendment 765).



PART B - ROLE IN THE OFFENSE


Introductory Commentary

This Part provides adjustments to the offense level based upon the role the defendant played in committing the offense.  The determination of a defendant’s role in the offense is to be made on the basis of all conduct within the scope of §1B1.3 (Relevant Conduct), i.e., all conduct included under §1B1.3(a)(1)-(4), and not solely on the basis of elements and acts cited in the count of conviction.

When an offense is committed by more than one participant, §3B1.1 or §3B1.2 (or neither) may apply.  Section 3B1.3 may apply to offenses committed by any number of participants.

Historical Note:  Effective November 1, 1987.  Amended effective November 1, 1990 (see Appendix C, amendment 345); November 1, 1992 (see Appendix C, amendment 456).


§3B1.1.     Aggravating Role

Based on the defendant's role in the offense, increase the offense level as follows:

(a)       If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels.

(b)      If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels.

(c)       If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels.


Commentary

Application Notes:

1.      A "participant" is a person who is criminally responsible for the commission of the offense, but need not have been convicted.  A person who is not criminally responsible for the commission of the offense (e.g., an undercover law enforcement officer) is not a participant.

2.      To qualify for an adjustment under this section, the defendant must have been the organizer, leader, manager, or supervisor of one or more other participants.  An upward departure may be warranted, however, in the case of a defendant who did not organize, lead, manage, or supervise another participant, but who nevertheless exercised management responsibility over the property, assets, or activities of a criminal organization.

3.      In assessing whether an organization is "otherwise extensive," all persons involved during the course of the entire offense are to be considered.  Thus, a fraud that involved only three participants but used the unknowing services of many outsiders could be considered extensive.

4.      In distinguishing a leadership and organizational role from one of mere management or supervision, titles such as "kingpin" or "boss" are not controlling.  Factors the court should consider include the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.  There can, of course, be more than one person who qualifies as a leader or organizer of a criminal association or conspiracy.   This adjustment does not apply to a defendant who merely suggests committing the offense. 

Background:  This section provides a range of adjustments to increase the offense level based upon the size of a criminal organization (i.e., the number of participants in the offense) and the degree to which the defendant was responsible for committing the offense.  This adjustment is included primarily because of concerns about relative responsibility.  However, it is also likely that persons who exercise a supervisory or managerial role in the commission of an offense tend to profit more from it and present a greater danger to the public and/or are more likely to recidivate.  The Commission’s intent is that this adjustment should increase with both the size of the organization and the degree of the defendant’s responsibility.

In relatively small criminal enterprises that are not otherwise to be considered as extensive in scope or in planning or preparation, the distinction between organization and leadership, and that of management or supervision, is of less significance than in larger enterprises that tend to have clearly delineated divisions of responsibility.  This is reflected in the inclusiveness of §3B1.1(c).

Historical Note:  Effective November 1, 1987.  Amended effective November 1, 1991 (see Appendix C, amendment 414); November 1, 1993 (see Appendix C, amendment 500).


§3B1.2.     Mitigating Role

Based on the defendant's role in the offense, decrease the offense level as follows:

(a)       If the defendant was a minimal participant in any criminal activity, decrease by 4 levels.

(b)      If the defendant was a minor participant in any criminal activity, decrease by 2 levels.

In cases falling between (a) and (b), decrease by 3 levels.


Commentary

Application Notes:

1.      Definition.—For purposes of this guideline, "participant" has the meaning given that term in Application Note 1 of §3B1.1 (Aggravating Role).

2.     Requirement of Multiple Participants.—This guideline is not applicable unless more than one participant was involved in the offense.  See the Introductory Commentary to this Part (Role in the Offense).  Accordingly, an adjustment under this guideline may not apply to a defendant who is the only defendant convicted of an offense unless that offense involved other participants in addition to the defendant and the defendant otherwise qualifies for such an adjustment. 

3.      Applicability of Adjustment.—

(A)    Substantially Less Culpable than Average Participant.—This section provides a range of adjustments for a defendant who plays a part in committing the offense that makes him substantially less culpable than the average participant.

A defendant who is accountable under §1B1.3 (Relevant Conduct) only for the conduct in which the defendant personally was involved and who performs a limited function in concerted criminal activity is not precluded from consideration for an adjustment under this guideline.  For example, a defendant who is convicted of a drug trafficking offense, whose role in that offense was limited to transporting or storing drugs and who is accountable under §1B1.3 only for the quantity of drugs the defendant personally transported or stored is not precluded from consideration for an adjustment under this guideline.

Likewise, a defendant who is accountable under §1B1.3 for a loss amount under §2B1.1 (Theft, Property Destruction, and Fraud) that greatly exceeds the defendant's personal gain from a fraud offense and who had limited knowledge of the scope of the scheme is not precluded from consideration for an adjustment under this guideline.  For example, a defendant in a health care fraud scheme, whose role in the scheme was limited to serving as a nominee owner and who received little personal gain relative to the loss amount, is not precluded from consideration for an adjustment under this guideline.

(B)    Conviction of Significantly Less Serious Offense.—If a defendant has received a lower offense level by virtue of being convicted of an offense significantly less serious than warranted by his actual criminal conduct, a reduction for a mitigating role under this section ordinarily is not warranted because such defendant is not substantially less culpable than a defendant whose only conduct involved the less serious offense.  For example, if a defendant whose actual conduct involved a minimal role in the distribution of 25 grams of cocaine (an offense having a Chapter Two offense level of level 14 under §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy)) is convicted of simple possession of cocaine (an offense having a Chapter Two offense level of level 6 under §2D2.1 (Unlawful Possession; Attempt or Conspiracy)), no reduction for a mitigating role is warranted because the defendant is not substantially less culpable than a defendant whose only conduct involved the simple possession of cocaine.

(C)   Fact-Based Determination.—The determination whether to apply subsection (a) or subsection (b), or an intermediate adjustment, is based on the totality of the circumstances and involves a determination that is heavily dependent upon the facts of the particular case.

4.      Minimal Participant.—Subsection (a) applies to a defendant described in Application Note 3(A) who plays a minimal role in concerted activity.  It is intended to cover defendants who are plainly among the least culpable of those involved in the conduct of a group.  Under this provision, the defendant’s lack of knowledge or understanding of the scope and structure of the enterprise and of the activities of others is indicative of a role as minimal participant.

5.      Minor Participant.— Subsection (b) applies to a defendant described in Application Note 3(A) who is less culpable than most other participants, but whose role could not be described as minimal.

6.      Application of Role Adjustment in Certain Drug Cases.—In a case in which the court applied §2D1.1 and the defendant’s base offense level under that guideline was reduced by operation of the maximum base offense level in §2D1.1(a)(5), the court also shall apply the appropriate adjustment under this guideline.

Historical Note:  Effective November 1, 1987.  Amended effective November 1, 1992 (see Appendix C, amendment 456); November 1, 2001 (see Appendix C, amendment 635); November 1, 2002 (see Appendix C, amendment 640); November 1, 2009 (see Appendix C, amendment 737); November 1, 2011 (see Appendix C, amendments 749 and 755).


§3B1.3.     Abuse of Position of Trust or Use of Special Skill

If the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense, increase by 2 levels.  This adjustment may not be employed if an abuse of trust or skill is included in the base offense level or specific offense characteristic.  If this adjustment is based upon an abuse of a position of trust, it may be employed in addition to an adjustment under §3B1.1 (Aggravating Role); if this adjustment is based solely on the use of a special skill, it may not be employed in addition to an adjustment under §3B1.1 (Aggravating Role).

Commentary

Application Notes:

1.      Definition of "Public or Private Trust".—"Public or private trust" refers to a position of public or private trust characterized by professional or managerial discretion (i.e., substantial discretionary judgment that is ordinarily given considerable deference).  Persons holding such positions ordinarily are subject to significantly less supervision than employees whose responsibilities are primarily non-discretionary in nature.  For this adjustment to apply, the position of public or private trust must have contributed in some significant way to facilitating the commission or concealment of the offense (e.g., by making the detection of the offense or the defendant’s responsibility for the offense more difficult).  This adjustment, for example, applies in the case of an embezzlement of a client’s funds by an attorney serving as a guardian, a bank executive’s fraudulent loan scheme, or the criminal sexual abuse of a patient by a physician under the guise of an examination.  This adjustment does not apply in the case of an embezzlement or theft by an ordinary bank teller or hotel clerk because such positions are not characterized by the above-described factors.

2.      Application of Adjustment in Certain Circumstances.—Notwithstanding Application Note 1, or any other provision of this guideline, an adjustment under this guideline shall apply to the following:

(A)    An employee of the United States Postal Service who engages in the theft or destruction of undelivered United States mail.

(B)    A defendant who exceeds or abuses the authority of his or her position in order to obtain, transfer, or issue unlawfully, or use without authority, any means of identification. "Means of identification" has the meaning given that term in 18 U.S.C. § 1028(d)(7).  The following are examples to which this subdivision would apply: (i) an employee of a state motor vehicle department who exceeds or abuses the authority of his or her position by knowingly issuing a driver’s license based on false, incomplete, or misleading information; (ii) a hospital orderly who exceeds or abuses the authority of his or her position by obtaining or misusing patient identification information from a patient chart; and (iii) a volunteer at a charitable organization who exceeds or abuses the authority of his or her position by obtaining or misusing identification information from a donor’s file.

3.      This adjustment also applies in a case in which the defendant provides sufficient indicia to the victim that the defendant legitimately holds a position of private or public trust when, in fact, the defendant does not.  For example, the adjustment applies in the case of a defendant who (A) perpetrates a financial fraud by leading an investor to believe the defendant is a legitimate investment broker; or (B) perpetrates a fraud by representing falsely to a patient or employer that the defendant is a licensed physician.  In making the misrepresentation, the defendant assumes a position of trust, relative to the victim, that provides the defendant with the same opportunity to commit a difficult-to-detect crime that the defendant would have had if the position were held legitimately.

4.      "Special skill" refers to a skill not possessed by members of the general public and usually requiring substantial education, training or licensing.  Examples would include pilots, lawyers, doctors, accountants, chemists, and demolition experts.

5.      The following additional illustrations of an abuse of a position of trust pertain to theft or embezzlement from employee pension or welfare benefit plans or labor unions:

(A)    If the offense involved theft or embezzlement from an employee pension or welfare benefit plan and the defendant was a fiduciary of the benefit plan, an adjustment under this section for abuse of a position of trust will apply.  "Fiduciary of the benefit plan" is defined in 29 U.S.C. § 1002(21)(A) to mean a person who exercises any discretionary authority or control in respect to the management of such plan or exercises authority or control in respect to management or disposition of its assets, or who renders investment advice for a fee or other direct or indirect compensation with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or who has any discretionary authority or responsibility in the administration of such plan.

(B)    If the offense involved theft or embezzlement from a labor union and the defendant was a union officer or occupied a position of trust in the union (as set forth in 29 U.S.C. § 501(a)), an adjustment under this section for an abuse of a position of trust will apply.

Background:  This adjustment applies to persons who abuse their positions of trust or their special skills to facilitate significantly the commission or concealment of a crime.  The adjustment also applies to persons who provide sufficient indicia to the victim that they legitimately hold a position of public or private trust when, in fact, they do not.  Such persons generally are viewed as more culpable.

Historical Note:  Effective November 1, 1987.  Amended effective November 1, 1990 (see Appendix C, amendment 346); November 1, 1993 (see Appendix C, amendment 492); November 1, 1998 (see Appendix C, amendment 580); November 1, 2001 (see Appendix C, amendment 617); November 1, 2005 (see Appendix C, amendment 677); November 1, 2009 (see Appendix C, amendment 726).


§3B1.4.     Using a Minor To Commit a Crime

If the defendant used or attempted to use a person less than eighteen years of age to commit the offense or assist in avoiding detection of, or apprehension for, the offense, increase by 2 levels.


Commentary

Application Notes:

1.      "Used or attempted to use" includes directing, commanding, encouraging, intimidating, counseling, training, procuring, recruiting, or soliciting.

2.      Do not apply this adjustment if the Chapter Two offense guideline incorporates this factor.  For example, if the defendant receives an enhancement under §2D1.1(b)(14)(B) for involving an individual less than 18 years of age in the offense, do not apply this adjustment.

3.      If the defendant used or attempted to use more than one person less than eighteen years of age, an upward departure may be warranted.

Historical Note:  Effective November 1, 1995 (see Appendix C, amendment 527).  Amended effective November 1, 1996 (see Appendix C, amendment 540); November 1, 2010 (see Appendix C, amendment 748); November 1, 2011 (see Appendix C, amendment 750).  A former §3B1.4 (untitled), effective November 1, 1987, amended effective November 1, 1989 (see Appendix C, amendment 303), was deleted effective November 1, 1995 (see Appendix C, amendment 527).


§3B1.5.     Use of Body Armor in Drug Trafficking Crimes and Crimes of Violence

If—

(1)      the defendant was convicted of a drug trafficking crime or a crime of violence; and

(2)      (apply the greater)—

(A)      the offense involved the use of body armor, increase by 2 levels; or

(B)      the defendant used body armor during the commission of the offense, in preparation for the offense, or in an attempt to avoid apprehension for the offense, increase by 4 levels.


Commentary

Application Notes:

1.      Definitions.—For purposes of this guideline:

"Body armor" means any product sold or offered for sale, in interstate or foreign commerce, as personal protective body covering intended to protect against gunfire, regardless of whether the product is to be worn alone or is sold as a complement to another product or garment.  See 18 U.S.C. § 921(a)(35).

"Crime of violence" has the meaning given that term in 18 U.S.C. § 16.

"Drug trafficking crime" has the meaning given that term in 18 U.S.C. § 924(c)(2).

"Offense" has the meaning given that term in Application Note 1 of the Commentary to §1B1.1 (Application Instructions).

"Use" means (A) active employment in a manner to protect the person from gunfire; or (B) use as a means of bartering.  "Use" does not mean mere possession (e.g., "use" does not mean that the body armor was found in the trunk of the car but not used actively as protection).  "Used" means put into "use" as defined in this paragraph.

2.      Application of Subdivision (2)(B).—Consistent with §1B1.3 (Relevant Conduct), the term "defendant", for purposes of subdivision (2)(B), limits the accountability of the defendant to the defendant’s own conduct and conduct that the defendant aided or abetted, counseled, commanded, induced, procured, or willfully caused.

3.      Interaction with §2K2.6 and Other Counts of Conviction.—If the defendant is convicted only of 18 U.S.C. § 931 and receives an enhancement under subsection (b)(1) of §2K2.6 (Possessing, Purchasing, or Owning Body Armor by Violent Felons), do not apply an adjustment under this guideline.  However, if, in addition to the count of conviction under 18 U.S.C. § 931, the defendant (A) is convicted of an offense that is a drug trafficking crime or a crime of violence; and (B) used the body armor with respect to that offense, an adjustment under this guideline shall apply with respect to that offense.

Background:  This guideline implements the directive in the James Guelff and Chris McCurley Body Armor Act of 2002 (section 11009(d) of the 21st Century Department of Justice Appropriations Authorization Act, Pub. L. 107–273).

Historical Note:  Effective November 1, 2003 (see Appendix C, amendment 659).  Amended effective November 1, 2004 (see Appendix C, amendment 670).


PART C - OBSTRUCTION AND RELATED ADJUSTMENTS

Historical Note:  Effective November 1, 1987.  Amended effective November 1, 2006  (see Appendix C, amendment 684).


§3C1.1.     Obstructing or Impeding the Administration of Justice

If (1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the defendant's offense of conviction and any relevant conduct; or (B) a closely related offense, increase the offense level by 2 levels.


Commentary

Application Notes:

1.      In General.—This adjustment applies if the defendant’s obstructive conduct (A) occurred with respect to the investigation, prosecution, or sentencing of the defendant’s instant offense of conviction, and (B) related to (i) the defendant’s offense of conviction and any relevant conduct; or (ii) an otherwise closely related case, such as that of a co-defendant.

Obstructive conduct that occurred prior to the start of the investigation of the instant offense of conviction may be covered by this guideline if the conduct was purposefully calculated, and likely, to thwart the investigation or prosecution of the offense of conviction.

2.      Limitations on Applicability of Adjustment.—This provision is not intended to punish a defendant for the exercise of a constitutional right.  A defendant’s denial of guilt (other than a denial of guilt under oath that constitutes perjury), refusal to admit guilt or provide information to a probation officer, or refusal to enter a plea of guilty is not a basis for application of this provision.  In applying this provision in respect to alleged false testimony or statements by the defendant, the court should be cognizant that inaccurate testimony or statements sometimes may result from confusion, mistake, or faulty memory and, thus, not all inaccurate testimony or statements necessarily reflect a willful attempt to obstruct justice.

3.      Covered Conduct Generally.—Obstructive conduct can vary widely in nature, degree of planning, and seriousness.  Application Note 4 sets forth examples of the types of conduct to which this adjustment is intended to apply.  Application Note 5 sets forth examples of less serious forms of conduct to which this enhancement is not intended to apply, but that ordinarily can appropriately be sanctioned by the determination of the particular sentence within the otherwise applicable guideline range.  Although the conduct to which this adjustment applies is not subject to precise definition, comparison of the examples set forth in Application Notes 4 and 5 should assist the court in determining whether application of this adjustment is warranted in a particular case.

4.      Examples of Covered Conduct.—The following is a non-exhaustive list of examples of the types of conduct to which this adjustment applies:

(A)    threatening, intimidating, or otherwise unlawfully influencing a co-defendant, witness, or juror, directly or indirectly, or attempting to do so;

(B)    committing, suborning, or attempting to suborn perjury, including during the course of a civil proceeding if such perjury pertains to conduct that forms the basis of the offense of conviction;

(C)   producing or attempting to produce a false, altered, or counterfeit document or record during an official investigation or judicial proceeding;

(D)   destroying or concealing or directing or procuring another person to destroy or conceal evidence that is material to an official investigation or judicial proceeding (e.g., shredding a document or destroying ledgers upon learning that an official investigation has commenced or is about to commence), or attempting to do so; however, if such conduct occurred contemporaneously with arrest (e.g., attempting to swallow or throw away a controlled substance), it shall not, standing alone, be sufficient to warrant an adjustment for obstruction unless it resulted in a material hindrance to the official investigation or prosecution of the instant offense or the sentencing of the offender;

(E)    escaping or attempting to escape from custody before trial or sentencing; or willfully failing to appear, as ordered, for a judicial proceeding;

(F)    providing materially false information to a judge or magistrate judge;

(G)   providing a materially false statement to a law enforcement officer that significantly obstructed or impeded the official investigation or prosecution of the instant offense;

(H)   providing materially false information to a probation officer in respect to a pre­sentence or other investigation for the court;

(I)     other conduct prohibited by obstruction of justice provisions under Title 18, United States Code (e.g., 18 U.S.C. §§ 1510, 1511);

(J)    failing to comply with a restraining order or injunction issued pursuant to 21 U.S.C. § 853(e) or with an order to repatriate property issued pursuant to 21 U.S.C. § 853(p);

(K)   threatening the victim of the offense in an attempt to prevent the victim from reporting the conduct constituting the offense of conviction.

This adjustment also applies to any other obstructive conduct in respect to the official investigation, prosecution, or sentencing of the instant offense where there is a separate count of conviction for such conduct.

5.      Examples of Conduct Ordinarily Not Covered.—Some types of conduct ordinarily do not warrant application of this adjustment but may warrant a greater sentence within the otherwise applicable guideline range or affect the determination of whether other guideline adjustments apply (e.g., §3E1.1 (Acceptance of Responsibility)).  However, if the defendant is convicted of a separate count for such conduct, this adjustment will apply and increase the offense level for the underlying offense (i.e., the offense with respect to which the obstructive conduct occurred).  See Application Note 8, below. 

The following is a non-exhaustive list of examples of the types of conduct to which this application note applies:

(A)    providing a false name or identification document at arrest, except where such conduct actually resulted in a significant hindrance to the investigation or prosecution of the instant offense;

(B)    making false statements, not under oath, to law enforcement officers, unless Application Note 4(G) above applies;

(C)   providing incomplete or misleading information, not amounting to a material falsehood, in respect to a presentence investigation;

(D)   avoiding or fleeing from arrest (see, however, §3C1.2 (Reckless Endangerment During Flight));

(E)    lying to a probation or pretrial services officer about defendant’s drug use while on pre-trial release, although such conduct may be a factor in determining whether to reduce the defendant’s sentence under §3E1.1 (Acceptance of Responsibility).

6.      "Material" Evidence Defined.—"Material" evidence, fact, statement, or information, as used in this section, means evidence, fact, statement, or information that, if believed, would tend to influence or affect the issue under determination.

7.      Inapplicability of Adjustment in Certain Circumstances.—If the defendant is convicted of an offense covered by §2J1.1 (Contempt), §2J1.2 (Obstruction of Justice), §2J1.3 (Perjury or Subornation of Perjury; Bribery of Witness), §2J1.5 (Failure to Appear by Material Witness), §2J1.6 (Failure to Appear by Defendant), §2J1.9 (Payment to Witness), §2X3.1 (Accessory After the Fact), or §2X4.1 (Misprision of Felony), this adjustment is not to be applied to the offense level for that offense except if a significant further obstruction occurred during the investigation, prosecution, or sentencing of the obstruction offense itself (e.g., if the defendant threatened a witness during the course of the prosecution for the obstruction offense).

Similarly, if the defendant receives an enhancement under §2D1.1(b)(14)(D), do not apply this adjustment.

8.      Grouping Under §3D1.2(c).—If the defendant is convicted both of an obstruction offense (e.g., 18 U.S.C. § 3146 (Penalty for failure to appear); 18 U.S.C. § 1621 (Perjury generally)) and an underlying offense (the offense with respect to which the obstructive conduct occurred), the count for the obstruction offense will be grouped with the count for the underlying offense under subsection (c) of §3D1.2 (Groups of Closely Related Counts).  The offense level for that group of closely related counts will be the offense level for the underlying offense increased by the 2-level adjustment specified by this section, or the offense level for the obstruction offense, whichever is greater.

9.      Accountability for §1B1.3(a)(1)(A) Conduct.—Under this section, the defendant is accountable for the defendant’s own conduct and for conduct that the defendant aided or abetted, counseled, commanded, induced, procured, or willfully caused.

Historical Note:  Effective November 1, 1987.  Amended effective November 1, 1989 (see Appendix C, amendments 251 and 252); November 1, 1990 (see Appendix C, amendment 347); November 1, 1991 (see Appendix C, amendment 415); November 1, 1992 (see Appendix C, amendment 457); November 1, 1993 (see Appendix C, amendment 496); November 1, 1997 (see Appendix C, amendment 566); November 1, 1998 (see Appendix C, amendments 579, 581, and 582); November 1, 2002 (see Appendix C, amendment 637); November 1, 2004 (see Appendix C, amendment 674); November 1, 2006 (see Appendix C, amendment 693); November 1, 2010 (see Appendix C, amendments 746, 747, and 748); November 1, 2011 (see Appendix C, amendments 750 and 758).


§3C1.2.     Reckless Endangerment During Flight

If the defendant recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer, increase by 2 levels.


Commentary

Application Notes:

1.      Do not apply this enhancement where the offense guideline in Chapter Two, or another adjustment in Chapter Three, results in an equivalent or greater increase in offense level solely on the basis of the same conduct.

2.      "Reckless" is defined in the Commentary to §2A1.4 (Involuntary Manslaughter).  For the purposes of this guideline, "reckless" means that the conduct was at least reckless and includes any higher level of culpability.  However, where a higher degree of culpability was involved, an upward departure above the 2-level increase provided in this section may be warranted.

3.      "During flight" is to be construed broadly and includes preparation for flight.  Therefore, this adjustment also is applicable where the conduct occurs in the course of resisting arrest.

4.      "Another person" includes any person, except a participant in the offense who willingly participated in the flight.

5.      Under this section, the defendant is accountable for the defendant’s own conduct and for conduct that the defendant aided or abetted, counseled, commanded, induced, procured, or willfully caused.

6.      If death or bodily injury results or the conduct posed a substantial risk of death or bodily injury to more than one person, an upward departure may be warranted.  See Chapter Five, Part K (Departures).

Historical Note:  Effective November 1, 1990 (see Appendix C, amendment 347).  Amended effective November 1, 1991 (see Appendix C, amendment 416); November 1, 1992 (see Appendix C, amendment 457); November 1, 2010 (see Appendix C, amendment 747).


§3C1.3.     Commission of Offense While on Release

If a statutory sentencing enhancement under 18 U.S.C. § 3147 applies, increase the offense level by 3 levels.


Commentary

Application Notes:

1.      Under 18 U.S.C. § 3147, a sentence of imprisonment must be imposed in addition to the sentence for the underlying offense, and the sentence of imprisonment imposed under 18 U.S.C. § 3147 must run consecutively to any other sentence of imprisonment.  Therefore, the court, in order to comply with the statute, should divide the sentence on the judgment form between the sentence attributable to the underlying offense and the sentence attributable to the enhancement.  The court will have to ensure that the "total punishment" (i.e., the sentence for the offense committed while on release plus the statutory sentencing enhancement under 18 U.S.C. § 3147) is in accord with the guideline range for the offense committed while on release, including, as in any other case in which a Chapter Three adjustment applies (see §1B1.1 (Application Instructions)), the adjustment provided by the enhancement in this section.  For example, if the applicable adjusted guideline range 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 6 months under 18 U.S.C. § 3147 would satisfy this requirement.  Similarly, if the applicable adjusted guideline range is 30-37 months and the court determines a "total punishment" of 30 months is appropriate, a sentence of 24 months for the underlying offense plus 6 months under 18 U.S.C. § 3147 would satisfy this requirement.  

Background:  An enhancement under 18 U.S.C. § 3147 applies, after appropriate sentencing notice, when a defendant is sentenced for an offense committed while released in connection with another federal offense.

This guideline enables the court to determine and implement a combined "total punishment" consistent with the overall structure of the guidelines, while at the same time complying with the statutory requirement.

Historical Note:  Effective November 1, 2006 (see Appendix C, amendment 684).  Amended effective November 1, 2009 (see Appendix C, amendment 734).


§3C1.4.     False Registration of Domain Name

If a statutory enhancement under 18 U.S.C. § 3559(g)(1) applies, increase by 2 levels.


Commentary

Background:  This adjustment implements the directive to the Commission in section 204(b) of Pub. L. 108–482.

Historical Note:  Effective November 1, 2006 (see Appendix C, amendment 689).  Amended effective November 1, 2008 (see Appendix C, amendment 724).



PART D - MULTIPLE COUNTS


Introductory Commentary

This Part provides rules for determining a single offense level that encompasses all the counts of which the defendant is convicted.  These rules apply to multiple counts of conviction (A) contained in the same indictment or information; or (B) contained in different indictments or informations for which sentences are to be imposed at the same time or in a consolidated proceeding. The single, "combined" offense level that results from applying these rules is used, after adjustment pursuant to the guidelines in subsequent parts, to determine the sentence.  These rules have been designed primarily with the more commonly prosecuted federal offenses in mind. 

The rules in this Part seek to provide incremental punishment for significant additional criminal conduct.  The most serious offense is used as a starting point.  The other counts determine how much to increase the offense level.  The amount of the additional punishment declines as the number of additional offenses increases. 

Some offenses that may be charged in multiple-count indictments are so closely intertwined with other offenses that conviction for them ordinarily would not warrant increasing the guideline range.  For example, embezzling money from a bank and falsifying the related records, although legally distinct offenses, represent essentially the same type of wrongful conduct with the same ultimate harm, so that it would be more appropriate to treat them as a single offense for purposes of sentencing.  Other offenses, such as an assault causing bodily injury to a teller during a bank robbery, are so closely related to the more serious offense that it would be appropriate to treat them as part of the more serious offense, leaving the sentence enhancement to result from application of a specific offense characteristic. 

In order to limit the significance of the formal charging decision and to prevent multiple punishment for substantially identical offense conduct, this Part provides rules for grouping offenses together.  Convictions on multiple counts do not result in a sentence enhancement unless they represent additional conduct that is not otherwise accounted for by the guidelines.  In essence, counts that are grouped together are treated as constituting a single offense for purposes of the guidelines. 

Some offense guidelines, such as those for theft, fraud and drug offenses, contain provisions that deal with repetitive or ongoing behavior.  Other guidelines, such as those for assault and robbery, are oriented more toward single episodes of criminal behavior.  Accordingly, different rules are required for dealing with multiple-count convictions involving these two different general classes of offenses.  More complex cases involving different types of offenses may require application of one rule to some of the counts and another rule to other counts.

Some offenses, e.g., racketeering and conspiracy, may be "composite" in that they involve a pattern of conduct or scheme involving multiple underlying offenses.  The rules in this Part are to be used to determine the offense level for such composite offenses from the offense level for the underlying offenses.

Essentially, the rules in this Part can be summarized as follows:  (1) If the offense guidelines in Chapter Two base the offense level primarily on the amount of money or quantity of substance involved (e.g., theft, fraud, drug trafficking, firearms dealing), or otherwise contain provisions dealing with repetitive or ongoing misconduct (e.g., many environmental offenses), add the numerical quantities and apply the pertinent offense guideline, including any specific offense characteristics for the conduct taken as a whole.  (2) When offenses are closely interrelated, group them together for purposes of the multiple-count rules, and use only the offense level for the most serious offense in that group.  (3)  As to other offenses (e.g., independent instances of assault or robbery), start with the offense level for the most serious count and use the number and severity of additional counts to determine the amount by which to increase that offense level.

Historical Note:  Effective November 1, 1987.  Amended effective November 1, 1989 (see Appendix C, amendment 121); November 1, 2007 (see Appendix C, amendment 707).


§3D1.1.     Procedure for Determining Offense Level on Multiple Counts

(a)       When a defendant has been convicted of more than one count, the court shall:

(1)       Group the counts resulting in conviction into distinct Groups of Closely Related Counts ("Groups") by applying the rules specified in §3D1.2.

(2)       Determine the offense level applicable to each Group by applying the rules specified in §3D1.3.

(3)       Determine the combined offense level applicable to all Groups taken together by applying the rules specified in §3D1.4.

(b)      Exclude from the application of §§3D1.2-3D1.5 the following:

(1)       Any count for which the statute (A) specifies a term of imprisonment to be imposed; and (B) requires that such term of imprisonment be imposed to run consecutively to any other term of imprisonment.  Sentences for such counts are governed by the provisions of §5G1.2(a).

(2)       Any count of conviction under 18 U.S.C. § 1028A.  See Application Note 2(B) of the Commentary to §5G1.2 (Sentencing on Multiple Counts of Conviction) for guidance on how sentences for multiple counts of conviction under 18 U.S.C. § 1028A should be imposed.


Commentary

Application Notes:

1.     In General.—For purposes of sentencing multiple counts of conviction, counts can be (A) contained in the same indictment or information; or (B) contained in different indictments or informations for which sentences are to be imposed at the same time or in a consolidated proceeding.

2.     Subsection (b)(1) applies if a statute (A) specifies a term of imprisonment to be imposed; and (B) requires that such term of imprisonment be imposed to run consecutively to any other term of imprisonment.  See, e.g., 18 U.S.C. § 924(c) (requiring mandatory minimum terms of imprisonment, based on the conduct involved, to run consecutively).  The multiple count rules set out under this Part do not apply to a count of conviction covered by subsection (b).  However, a count covered by subsection (b)(1) may affect the offense level determination for other counts.   For example, a defendant is convicted of one count of bank robbery (18 U.S.C. § 2113), and one count of use of a firearm in the commission of a crime of violence (18 U.S.C. § 924(c)).  The two counts are not grouped together pursuant to this guideline, and, to avoid unwarranted double counting, the offense level for the bank robbery count under §2B3.1 (Robbery) is computed without application of the enhancement for weapon possession or use as otherwise required by subsection (b)(2) of that guideline.  Pursuant to 18 U.S.C. § 924(c), the mandatory minimum five-year sentence on the weapon-use count runs consecutively to the guideline sentence imposed on the bank robbery count.  See §;5G1.2(a).

Unless specifically instructed, subsection (b)(1) does not apply when imposing a sentence under a statute that requires the imposition of a consecutive term of imprisonment only if a term of imprisonment is imposed (i.e., the statute does not otherwise require a term of imprisonment to be imposed).  See, e.g., 18 U.S.C. § 3146 (Penalty for failure to appear); 18 U.S.C. § 924(a)(4) (regarding penalty for 18 U.S.C. § 922(q) (possession or discharge of a firearm in a school zone)); 18 U.S.C. § 1791(c) (penalty for providing or possessing a controlled substance in prison).  Accordingly, the multiple count rules set out under this Part do apply to a count of conviction under this type of statute.

Background:  This section outlines the procedure to be used for determining the combined offense level.  After any adjustments from Chapter 3, Part E (Acceptance of Responsibility) and Chapter 4, Part B (Career Offenders and Criminal Livelihood) are made, this combined offense level is used to determine the guideline sentence range.  Chapter Five (Determining the Sentence) discusses how to determine the sentence from the (combined) offense level; §5G1.2 deals specifically with determining the sentence of imprisonment when convictions on multiple counts are involved.  References in Chapter Five (Determining the Sentence) to the "offense level" should be treated as referring to the combined offense level after all subsequent adjustments have been made.

Historical Note:  Effective November 1, 1987.  Amended effective November 1, 1990 (see Appendix C, amendment 348); November 1, 1998 (see Appendix C, amendment 579); November 1, 2000 (see Appendix C, amendment 598); November 1, 2005 (see Appendix C, amendments 677 and 680); November 1, 2007 (see Appendix C, amendment 707).


§3D1.2.     Groups of Closely Related Counts

All counts involving substantially the same harm shall be grouped together into a single Group.  Counts involve substantially the same harm within the meaning of this rule:

(a)       When counts involve the same victim and the same act or transaction.

(b)      When counts involve the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan.

(c)       When one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts.

(d)      When the offense level is determined largely on the basis of the total amount of harm or loss, the quantity of a substance involved, or some other measure of aggregate harm, or if the offense behavior is ongoing or continuous in nature and the offense guideline is written to cover such behavior.

Offenses covered by the following guidelines are to be grouped under this subsection:

§2A3.5;
§§2B1.1, 2B1.4, 2B1.5, 2B4.1, 2B5.1, 2B5.3, 2B6.1;
§§2C1.1, 2C1.2, 2C1.8;
§§2D1.1, 2D1.2, 2D1.5, 2D1.11, 2D1.13;
§§2E4.1, 2E5.1;
§§2G2.2, 2G3.1;
§2K2.1;
§§2L1.1, 2L2.1;
§2N3.1;
§2Q2.1;
§2R1.1;
§§2S1.1, 2S1.3;
§§2T1.1, 2T1.4, 2T1.6, 2T1.7, 2T1.9, 2T2.1, 2T3.1.

Specifically excluded from the operation of this subsection are:

all offenses in Chapter Two, Part A (except §2A3.5);
§§2B2.1, 2B2.3, 2B3.1, 2B3.2, 2B3.3;
§2C1.5;
§§2D2.1, 2D2.2, 2D2.3;
§§2E1.3, 2E1.4, 2E2.1;
§§2G1.1, 2G2.1;
§§2H1.1, 2H2.1, 2H4.1;
§§2L2.2, 2L2.5;
§§2M2.1, 2M2.3, 2M3.1, 2M3.2, 2M3.3, 2M3.4, 2M3.5, 2M3.9;
§§2P1.1, 2P1.2, 2P1.3;
§2X6.1.

For multiple counts of offenses that are not listed, grouping under this subsection may or may not be appropriate; a case-by-case determination must be made based upon the facts of the case and the applicable guidelines (including specific offense characteristics and other adjustments) used to determine the offense level.

Exclusion of an offense from grouping under this subsection does not necessarily preclude grouping under another subsection.


Commentary

Application Notes:

1.     Subsections (a)-(d) set forth circumstances in which counts are to be grouped together into a single Group.  Counts are to be grouped together into a single Group if any one or more of the subsections provide for such grouping.  Counts for which the statute (A) specifies a term of imprisonment to be imposed; and (B) requires that such term of imprisonment be imposed to run consecutively to any other term of imprisonment are excepted from application of the multiple count rules.  See §;3D1.1(b)(1); id., comment. (n.1).

2.     The term "victim" is not intended to include indirect or secondary victims.  Generally, there will be one person who is directly and most seriously affected by the offense and is therefore identifiable as the victim.  For offenses in which there are no identifiable victims (e.g., drug or immigration offenses, where society at large is the victim), the "victim" for purposes of subsections (a) and (b) is the societal interest that is harmed.  In such cases, the counts are grouped together when the societal interests that are harmed are closely related.  Where one count, for example, involves unlawfully entering the United States and the other involves possession of fraudulent evidence of citizenship, the counts are grouped together because the societal interests harmed (the interests protected by laws governing immigration) are closely related.  In contrast, where one count involves the sale of controlled substances and the other involves an immigration law violation, the counts are not grouped together because different societal interests are harmed.  Ambiguities should be resolved in accordance with the purpose of this section as stated in the lead paragraph, i.e., to identify and group "counts involving substantially the same harm."   

3.     Under subsection (a), counts are to be grouped together when they represent essentially a single injury or are part of a single criminal episode or transaction involving the same victim.

When one count charges an attempt to commit an offense and the other charges the commission of that offense, or when one count charges an offense based on a general prohibition and the other charges violation of a specific prohibition encompassed in the general prohibition, the counts will be grouped together under subsection (a).

Examples:   (1) The defendant is convicted of forging and uttering the same check.  The counts are to be grouped together.  (2) The defendant is convicted of kidnapping and assaulting the victim during the course of the kidnapping.  The counts are to be grouped together.  (3) The defendant is convicted of bid rigging (an antitrust offense) and of mail fraud for signing and mailing a false statement that the bid was competitive.  The counts are to be grouped together.  (4) The defendant is convicted of two counts of assault on a federal officer for shooting at the same officer twice while attempting to prevent apprehension as part of a single criminal episode.  The counts are to be grouped together.  (5) The defendant is convicted of three counts of unlawfully bringing aliens into the United States, all counts arising out of a single incident.  The three counts are to be grouped together.  But:  (6) The defendant is convicted of two counts of assault on a federal officer for shooting at the officer on two separate days.  The counts are not to be grouped together.

4.     Subsection (b) provides that counts that are part of a single course of conduct with a single criminal objective and represent essentially one composite harm to the same victim are to be grouped together, even if they constitute legally distinct offenses occurring at different times.  This provision does not authorize the grouping of offenses that cannot be considered to represent essentially one composite harm (e.g., robbery of the same victim on different occasions involves multiple, separate instances of fear and risk of harm, not one composite harm).

When one count charges a conspiracy or solicitation and the other charges a substantive offense that was the sole object of the conspiracy or solicitation, the counts will be grouped together under subsection (b).

Examples:  (1) The defendant is convicted of one count of conspiracy to commit extortion and one count of extortion for the offense he conspired to commit.  The counts are to be grouped together.  (2) The defendant is convicted of two counts of mail fraud and one count of wire fraud, each in furtherance of a single fraudulent scheme.  The counts are to be grouped together, even if the mailings and telephone call occurred on different days.  (3) The defendant is convicted of one count of auto theft and one count of altering the vehicle identification number of the car he stole.  The counts are to be grouped together.  (4) The defendant is convicted of two counts of distributing a controlled substance, each count involving a separate sale of 10 grams of cocaine that is part of a common scheme or plan.  In addition, a finding is made that there are two other sales, also part of the common scheme or plan, each involving 10 grams of cocaine.  The total amount of all four sales (40 grams of cocaine) will be used to determine the offense level for each count under §1B1.3(a)(2).  The two counts will then be grouped together under either this subsection or subsection (d) to avoid double counting.  But:  (5) The defendant is convicted of two counts of rape for raping the same person on different days.  The counts are not to be grouped together.

5.     Subsection (c) provides that when conduct that represents a separate count, e.g., bodily injury or obstruction of justice, is also a specific offense characteristic in or other adjustment to another count, the count represented by that conduct is to be grouped with the count to which it constitutes an aggravating factor.  This provision prevents "double counting" of offense behavior.  Of course, this rule applies only if the offenses are closely related.  It is not, for example, the intent of this rule that (assuming they could be joined together) a bank robbery on one occasion and an assault resulting in bodily injury on another occasion be grouped together.  The bodily injury (the harm from the assault) would not be a specific offense characteristic to the robbery and would represent a different harm.  On the other hand, use of a firearm in a bank robbery and unlawful possession of that firearm are sufficiently related to warrant grouping of counts under this subsection.  Frequently, this provision will overlap subsection (a), at least with respect to specific offense characteristics.  However, a count such as obstruction of justice, which represents a Chapter Three adjustment and involves a different harm or societal interest than the underlying offense, is covered by subsection (c) even though it is not covered by subsection (a).

Sometimes there may be several counts, each of which could be treated as an aggravating factor to another more serious count, but the guideline for the more serious count provides an adjustment for only one occurrence of that factor.  In such cases, only the count representing the most serious of those factors is to be grouped with the other count.  For example, if in a robbery of a credit union on a military base the defendant is also convicted of assaulting two employees, one of whom is injured seriously, the assault with serious bodily injury would be grouped with the robbery count, while the remaining assault conviction would be treated separately.

A cross reference to another offense guideline does not constitute "a specific offense characteristic ... or other adjustment" within the meaning of subsection (c).  For example, the guideline for bribery of a public official contains a cross reference to the guideline for a conspiracy to commit the offense that the bribe was to facilitate.  Nonetheless, if the defendant were convicted of one count of securities fraud and one count of bribing a public official to facilitate the fraud, the two counts would not be grouped together by virtue of the cross reference.  If, however, the bribe was given for the purpose of hampering a criminal investigation into the offense, it would constitute obstruction and under §3C1.1 would result in a 2-level enhancement to the offense level for the fraud.  Under the latter circumstances, the counts would be grouped together.

6.     Subsection (d) likely will be used with the greatest frequency.  It provides that most property crimes (except robbery, burglary, extortion and the like), drug offenses, firearms offenses, and other crimes where the guidelines are based primarily on quantity or contemplate continuing behavior are to be grouped together.  The list of instances in which this subsection should be applied is not exhaustive.  Note, however, that certain guidelines are specifically excluded from the operation of subsection (d).

A conspiracy, attempt, or solicitation to commit an offense is covered under subsection (d) if the offense that is the object of the conspiracy, attempt, or solicitation is covered under subsection (d).

Counts involving offenses to which different offense guidelines apply are grouped together under subsection (d) if the offenses are of the same general type and otherwise meet the criteria for grouping under this subsection.  In such cases, the offense guideline that results in the highest offense level is used; see §3D1.3(b).  The "same general type" of offense is to be construed broadly.

Examples:  (1) The defendant is convicted of five counts of embezzling money from a bank.  The five counts are to be grouped together.  (2) The defendant is convicted of two counts of theft of social security checks and three counts of theft from the mail, each from a different victim.  All five counts are to be grouped together.  (3)  The defendant is convicted of five counts of mail fraud and ten counts of wire fraud.  Although the counts arise from various schemes, each involves a monetary objective.  All fifteen counts are to be grouped together.  (4) The defendant is convicted of three counts of unlicensed dealing in firearms.  All three counts are to be grouped together.  (5) The defendant is convicted of one count of selling heroin, one count of selling PCP, and one count of selling cocaine.  The counts are to be grouped together.  The Commentary to §2D1.1 provides rules for combining (adding) quantities of different drugs to determine a single combined offense level.  (6) The defendant is convicted of three counts of tax evasion.  The counts are to be grouped together.  (7) The defendant is convicted of three counts of discharging toxic substances from a single facility.  The counts are to be grouped together.  (8) The defendant is convicted on two counts of check forgery and one count of uttering the first of the forged checks.  All three counts are to be grouped together.  Note, however, that the uttering count is first grouped with the first forgery count under subsection (a) of this guideline, so that the monetary amount of that check counts only once when the rule in §3D1.3(b) is applied.  But:  (9) The defendant is convicted of three counts of bank robbery.  The counts are not to be grouped together, nor are the amounts of money involved to be added.

7.     A single case may result in application of several of the rules in this section.  Thus, for example, example (8) in the discussion of subsection (d) involves an application of §3D1.2(a) followed by an application of §3D1.2(d).  Note also that a Group may consist of a single count; conversely, all counts may form a single Group.

8.     A defendant may be convicted of conspiring to commit several substantive offenses and also of committing one or more of the substantive offenses.  In such cases, treat the conspiracy count as if it were several counts, each charging conspiracy to commit one of the substantive offenses.  See §;1B1.2(d) and accompanying commentary.  Then apply the ordinary grouping rules to determine the combined offense level based upon the substantive counts of which the defendant is convicted and the various acts cited by the conspiracy count that would constitute behavior of a substantive nature.  Example:  The defendant is convicted of two counts:  conspiring to commit offenses A, B, and C, and committing offense A.  Treat this as if the defendant was convicted of (1) committing offense A; (2) conspiracy to commit offense A; (3) conspiracy to commit offense B; and (4) conspiracy to commit offense C.  Count (1) and count (2) are grouped together under §3D1.2(b).  Group the remaining counts, including the various acts cited by the conspiracy count that would constitute behavior of a substantive nature, according to the rules in this section.

Background:  Ordinarily, the first step in determining the combined offense level in a case involving multiple counts is to identify those counts that are sufficiently related to be placed in the same Group of Closely Related Counts ("Group").  This section specifies four situations in which counts are to be grouped together.  Although it appears last for conceptual reasons, subsection (d) probably will be used most frequently.

A primary consideration in this section is whether the offenses involve different victims.  For example, a defendant may stab three prison guards in a single escape attempt.  Some would argue that all counts arising out of a single transaction or occurrence should be grouped together even when there are distinct victims.  Although such a proposal was considered, it was rejected because it probably would require departure in many cases in order to capture adequately the criminal behavior.  Cases involving injury to distinct victims are sufficiently comparable, whether or not the injuries are inflicted in distinct transactions, so that each such count should be treated separately rather than grouped together.  Counts involving different victims (or societal harms in the case of "victimless" crimes) are grouped together only as provided in subsection (c) or (d).

Even if counts involve a single victim, the decision as to whether to group them together may not always be clear cut.  For example, how contemporaneous must two assaults on the same victim be in order to warrant grouping together as constituting a single transaction or occurrence?  Existing case law may provide some guidance as to what constitutes distinct offenses, but such decisions often turn on the technical language of the statute and cannot be controlling.  In interpreting this Part and resolving ambiguities, the court should look to the underlying policy of this Part as stated in the Introductory Commentary.

Historical Note:  Effective November 1, 1987.  Amended effective June 15, 1988 (see Appendix C, amendment 45); November 1, 1989 (see Appendix C, amendments 121, 253-256, and 303); November 1, 1990 (see Appendix C, amendments 309, 348, and 349); November 1, 1991 (see Appendix C, amendment 417); November 1, 1992 (see Appendix C, amendment 458); November 1, 1993 (see Appendix C, amendment 496); November 1, 1995 (see Appendix C, amendment 534); November 1, 1996 (see Appendix C, amendment 538); November 1, 1998 (see Appendix C, amendment 579); November 1, 2001 (see Appendix C, amendments 615, 617, and 634); November 1, 2002 (see Appendix C, amendment 638); January 25, 2003 (see Appendix C, amendment 648); November 1, 2003 (see Appendix C, amendment 656); November 1, 2004 (see Appendix C, amendment 664); November 1, 2005 (see Appendix C, amendments 679 and 680); November 1, 2007 (see Appendix C, amendment 701).


§3D1.3.     Offense Level Applicable to Each Group of Closely Related Counts

Determine the offense level applicable to each of the Groups as follows:

(a)       In the case of counts grouped together pursuant to §3D1.2(a)-(c), the offense level applicable to a Group is the offense level, determined in accordance with Chapter Two and Parts A, B, and C of Chapter Three, for the most serious of the counts comprising the Group, i.e., the highest offense level of the counts in the Group.

(b)      In the case of counts grouped together pursuant to §3D1.2(d), the offense level applicable to a Group is the offense level corresponding to the aggregated quantity, determined in accordance with Chapter Two and Parts A, B and C of Chapter Three.  When the counts involve offenses of the same general type to which different guidelines apply, apply the offense guideline that produces the highest offense level.

Commentary

Application Notes:

1.     The "offense level" for a count refers to the offense level from Chapter Two after all adjustments from Parts A, B, and C of Chapter Three.

2.     When counts are grouped pursuant to §3D1.2(a)-(c), the highest offense level of the counts in the group is used.  Ordinarily, it is necessary to determine the offense level for each of the counts in a Group in order to ensure that the highest is correctly identified.  Sometimes, it will be clear that one count in the Group cannot have a higher offense level than another, as with a count for an attempt or conspiracy to commit the completed offense.  The formal determination of the offense level for such a count may be unnecessary.

3.     When counts are grouped pursuant to §3D1.2(d), the offense guideline applicable to the aggregate behavior is used.  If the counts in the Group are covered by different guidelines, use the guideline that produces the highest offense level.  Determine whether the specific offense characteristics or adjustments from Chapter Three, Parts A, B, and C apply based upon the combined offense behavior taken as a whole.  Note that guidelines for similar property offenses have been coordinated to produce identical offense levels, at least when substantial property losses are involved.  However, when small sums are involved the differing specific offense characteristics that require increasing the offense level to a certain minimum may affect the outcome.

4.     Sometimes the rule specified in this section may not result in incremental punishment for additional criminal acts because of the grouping rules.  For example, if the defendant commits forcible criminal sexual abuse (rape), aggravated assault, and robbery, all against the same victim on a single occasion, all of the counts are grouped together under §3D1.2.  The aggravated assault will increase the guideline range for the rape.  The robbery, however, will not.  This is because the offense guideline for rape (§2A3.1) includes the most common aggravating factors, including injury, that data showed to be significant in actual practice.  The additional factor of property loss ordinarily can be taken into account adequately within the guideline range for rape, which is fairly wide.  However, an exceptionally large property loss in the course of the rape would provide grounds for an upward departure.  See §5K2.5 (Property Damage or Loss).

Background:  This section provides rules for determining the offense level associated with each Group of Closely Related Counts.  Summary examples of the application of these rules are provided at the end of the Commentary to this Part.  

Historical Note:  Effective November 1, 1987.  Amended effective November 1, 1989 (see Appendix C, amendments 257 and 303); November 1, 2001 (see Appendix C, amendment 617); November 1, 2004 (see Appendix C, amendment 674).


§3D1.4.     Determining the Combined Offense Level

The combined offense level is determined by taking the offense level applicable to the Group with the highest offense level and increasing that offense level by the amount indicated in the following table:

Number of Units Increase in Offense Level
1 none
1 1/2 add 1 level
2 add 2 levels
2 1/2 - 3 add 3 levels
3 1/2 - 5 add 4 levels
More than 5 add 5 levels.

In determining the number of Units for purposes of this section:

(a)       Count as one Unit the Group with the highest offense level.  Count one additional Unit for each Group that is equally serious or from 1 to 4 levels less serious.

(b)      Count as one-half Unit any Group that is 5 to 8 levels less serious than the Group with the highest offense level.

(c)       Disregard any Group that is 9 or more levels less serious than the Group with the highest offense level.  Such Groups will not increase the applicable offense level but may provide a reason for sentencing at the higher end of the sentencing range for the applicable offense level.


Commentary

Application Notes:

1.     Application of the rules in §§3D1.2 and 3D1.3 may produce a single Group of Closely Related Counts.  In such cases, the combined offense level is the level corresponding to the Group determined in accordance with §3D1.3. 

2.     The procedure for calculating the combined offense level when there is more than one Group of Closely Related Counts is as follows:  First, identify the offense level applicable to the most serious Group; assign it one Unit.  Next, determine the number of Units that the remaining Groups represent.  Finally, increase the offense level for the most serious Group by the number of levels indicated in the table corresponding to the total number of Units. 

Background:  When Groups are of roughly comparable seriousness, each Group will represent one Unit.  When the most serious Group carries an offense level substantially higher than that applicable to the other Groups, however, counting the lesser Groups fully for purposes of the table could add excessive punishment, possibly even more than those offenses would carry if prosecuted separately.  To avoid this anomalous result and produce declining marginal punishment, Groups 9 or more levels less serious than the most serious Group should not be counted for purposes of the table, and that Groups 5 to 8 levels less serious should be treated as equal to one-half of a Group.  Thus, if the most serious Group is at offense level 15 and if two other Groups are at level 10, there would be a total of two Units for purposes of the table (one plus one-half plus one-half) and the combined offense level would be 17.  Inasmuch as the maximum increase provided in the guideline is 5 levels, departure would be warranted in the unusual case where the additional offenses resulted in a total of significantly more than 5 Units.

In unusual circumstances, the approach adopted in this section could produce adjustments for the additional counts that are inadequate or excessive.  If there are several groups and the most serious offense is considerably more serious than all of the others, there will be no increase in the offense level resulting from the additional counts.  Ordinarily, the court will have latitude to impose added punishment by sentencing toward the upper end of the range authorized for the most serious offense.  Situations in which there will be inadequate scope for ensuring appropriate additional punishment for the additional crimes are likely to be unusual and can be handled by departure from the guidelines.  Conversely, it is possible that if there are several minor offenses that are not grouped together, application of the rules in this Part could result in an excessive increase in the sentence range.  Again, such situations should be infrequent and can be handled through departure.  An alternative method for ensuring more precise adjustments would have been to determine the appropriate offense level adjustment through a more complicated mathematical formula; that approach was not adopted because of its complexity.

Historical Note:  Effective November 1, 1987.  Amended effective November 1, 1990 (see Appendix C, amendment 350).


§3D1.5.     Determining the Total Punishment

Use the combined offense level to determine the appropriate sentence in accordance with the provisions of Chapter Five.


Commentary

This section refers the court to Chapter Five (Determining the Sentence) in order to determine the total punishment to be imposed based upon the combined offense level.  The combined offense level is subject to adjustments from Chapter Three, Part E (Acceptance of Responsibility) and Chapter Four, Part B (Career Offenders and Criminal Livelihood).  

Historical Note:  Effective November 1, 1987.


*   *   *   *   *


Illustrations of the Operation of the Multiple-Count Rules

The following examples, drawn from presentence reports in the Commission’s files, illustrate the operation of the guidelines for multiple counts.  The examples are discussed summarily; a more thorough, step-by-step approach is recommended until the user is thoroughly familiar with the guidelines. 

1.     Defendant A was convicted on four counts, each charging robbery of a different bank.  Each would represent a distinct Group.  §3D1.2.  In each of the first three robberies, the offense level was 22 (20 plus a 2-level increase because a financial institution was robbed) (§2B3.1(b)).  In the fourth robbery $12,000 was taken and a firearm was displayed; the offense level was therefore 28.  As the first three counts are 6 levels lower than the fourth, each of the first three represents one-half unit for purposes of §3D1.4.  Altogether there are 2 1/2 Units, and the offense level for the most serious (28) is therefore increased by 3 levels under the table.  The combined offense level is 31. 

2.     Defendant C was convicted on four counts:  (1) distribution of 230 grams of cocaine; (2) distribution of 150 grams of cocaine; (3) distribution of 75 grams of heroin; (4) offering a DEA agent $20,000 to avoid prosecution.  The combined offense level for drug offenses is determined by the total quantity of drugs, converted to marihuana equivalents (using the Drug Equivalency Tables in the Commentary to §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking)).  The first count translates into 46 kilograms of marihuana; the second count translates into 30 kilograms of marihuana; and the third count translates into 75 kilograms of marihuana.  The total is 151 kilograms of marihuana.  Under §2D1.1, the combined offense level for the drug offenses is 26.  In addition, because of the attempted bribe of the DEA agent, this offense level is increased by 2 levels to 28 under §3C1.1 (Obstructing or Impeding the Administration of Justice).  Because the conduct constituting the bribery offense is accounted for by §3C1.1, it becomes part of the same Group as the drug offenses pursuant to §3D1.2(c).  The combined offense level is 28 pursuant to §3D1.3(a), because the offense level for bribery (22) is less than the offense level for the drug offenses (28). 

3.     Defendant D was convicted of four counts arising out of a scheme pursuant to which the defendant received kickbacks from subcontractors.  The counts were as follows:  (1) The defendant received $27,000 from subcontractor A relating to contract X (Mail Fraud).  (2) The defendant received $12,000 from subcontractor A relating to contract X (Commercial Bribery).  (3) The defendant received $15,000 from subcontractor A relating to contract Y (Mail Fraud).  (4) The defendant received $20,000 from subcontractor B relating to contract Z (Commercial Bribery).  The mail fraud counts are covered by §2B1.1 (Theft, Property Destruction, and Fraud).  The bribery counts are covered by §2B4.1 (Bribery in Procurement of Bank Loan and Other Commercial Bribery), which treats the offense as a sophisticated fraud.  The total money involved is $74,000, which results in an offense level of 16 under either §2B1.1 (assuming the application of the "sophisticated means" enhancement in §2B1.1(b)(10)) or §2B4.1.  Since these two guidelines produce identical offense levels, the combined offense level is 16.

Historical Note:  Effective November 1, 1987.  Amended effective November 1, 1989 (see Appendix C, amendment 303); November 1, 1990 (see Appendix C, amendment 350); November 1, 1991 (see Appendix C, amendment 417); November 1, 1995 (see Appendix C, amendment 534); November 1, 2001 (see Appendix C, amendment 617); November 1, 2009 (see Appendix C, amendment 737); November 1, 2011 (see Appendix C, amendment 760).


PART E - ACCEPTANCE OF RESPONSIBILITY


§3E1.1.     Acceptance of Responsibility

(a)       If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels.

(b)      If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, decrease the offense level by 1 additional level.


Commentary

Application Notes:

1.     In determining whether a defendant qualifies under subsection (a), appropriate considerations include, but are not limited to, the following:

(A)    truthfully admitting the conduct comprising the offense(s) of conviction, and truthfully admitting or not falsely denying any additional relevant conduct for which the defendant is accountable under §1B1.3 (Relevant Conduct).  Note that a defendant is not required to volunteer, or affirmatively admit, relevant conduct beyond the offense of conviction in order to obtain a reduction under subsection (a).  A defendant may remain silent in respect to relevant conduct beyond the offense of conviction without affecting his ability to obtain a reduction under this subsection.  However, a defendant who falsely denies, or frivolously contests, relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility;

(B)    voluntary termination or withdrawal from criminal conduct or associations;

(C)   voluntary payment of restitution prior to adjudication of guilt;

(D)   voluntary surrender to authorities promptly after commission of the offense;

(E)    voluntary assistance to authorities in the recovery of the fruits and instrumentalities of the offense;

(F)    voluntary resignation from the office or position held during the commission of the offense; 

(G)   post-offense rehabilitative efforts (e.g., counseling or drug treatment); and

(H)   the timeliness of the defendant’s conduct in manifesting the acceptance of responsibility.

2.     This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.  Conviction by trial, however, does not automatically preclude a defendant from consideration for such a reduction.  In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial.  This may occur, for example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct).  In each such instance, however, a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct.

3.     Entry of a plea of guilty prior to the commencement of trial combined with truthfully admitting the conduct comprising the offense of conviction, and truthfully admitting or not falsely denying any additional relevant conduct for which he is accountable under §1B1.3 (Relevant Conduct) (see Application Note 1(A)), will constitute significant evidence of acceptance of responsibility for the purposes of subsection (a).  However, this evidence may be outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility.  A defendant who enters a guilty plea is not entitled to an adjustment under this section as a matter of right.

4.     Conduct resulting in an enhancement under §3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct.  There may, however, be extraordinary cases in which adjustments under both §§3C1.1 and 3E1.1 may apply.

5.     The sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility.  For this reason, the determination of the sentencing judge is entitled to great deference on review.

6.     Subsection (a) provides a 2-level decrease in offense level.  Subsection (b) provides an additional 1-level decrease in offense level for a defendant at offense level 16 or greater prior to the operation of subsection (a) who both qualifies for a decrease under subsection (a) and who has assisted authorities in the investigation or prosecution of his own misconduct by taking the steps set forth in subsection (b).  The timeliness of the defendant’s acceptance of responsibility is a consideration under both subsections, and is context specific.  In general, the conduct qualifying for a decrease in offense level under subsection (b) will occur particularly early in the case.  For example, to qualify under subsection (b), the defendant must have notified authorities of his intention to enter a plea of guilty at a sufficiently early point in the process so that the government may avoid preparing for trial and the court may schedule its calendar efficiently.

Because the Government is in the best position to determine whether the defendant has assisted authorities in a manner that avoids preparing for trial, an adjustment under subsection (b) may only be granted upon a formal motion by the Government at the time of sentencing.  See section 401(g)(2)(B) of Public Law 108–21.

Background:  The reduction of offense level provided by this section recognizes legitimate societal interests.  For several reasons, a defendant who clearly demonstrates acceptance of responsibility for his offense by taking, in a timely fashion, the actions listed above (or some equivalent action) is appropriately given a lower offense level than a defendant who has not demonstrated acceptance of responsibility.

Subsection (a) provides a 2-level decrease in offense level.  Subsection (b) provides an additional 1-level decrease for a defendant at offense level 16 or greater prior to operation of subsection (a) who both qualifies for a decrease under subsection (a) and has assisted authorities in the investigation or prosecution of his own misconduct by taking the steps specified in subsection (b).  Such a defendant has accepted responsibility in a way that ensures the certainty of his just punishment in a timely manner, thereby appropriately meriting an additional reduction.  Subsection (b) does not apply, however, to a defendant whose offense level is level 15 or lower prior to application of subsection (a).  At offense level 15 or lower, the reduction in the guideline range provided by a 2-level decrease in offense level under subsection (a) (which is a greater proportional reduction in the guideline range than at higher offense levels due to the structure of the Sentencing Table) is adequate for the court to take into account the factors set forth in subsection (b) within the applicable guideline range.

Section 401(g) of Public Law 108–21 directly amended subsection (b), Application Note 6 (including adding the last paragraph of that application note), and the Background Commentary, effective April 30, 2003.

Historical Note:  Effective November 1, 1987.  Amended effective January 15, 1988 (see Appendix C, amendment 46); November 1, 1989 (see Appendix C, amendment 258); November 1, 1990 (see Appendix C, amendment 351); November 1, 1992 (see Appendix C, amendment 459); April 30, 2003 (see Appendix C, amendment 649); November 1, 2010 (see Appendix C, amendments 746 and 747).