2005 Federal Sentencing Guidelines
Chapter 2 - PART
K - OFFENSES INVOLVING PUBLIC SAFETY
§2K2.1. Unlawful Receipt, Possession,
or Transportation of Firearms or Ammunition; Prohibited Transactions Involving
Firearms or Ammunition
(a) Base Offense Level (Apply the Greatest):
(1) 26, if the offense involved a
firearm described in 26 U.S.C. § 5845(a) or 18 U.S.C. § 921(a)(30),
and the defendant committed any part of the instant offense subsequent to
sustaining at least two felony convictions of either a crime of violence
or a controlled substance offense;
(2) 24, if the defendant committed
any part of the instant offense subsequent to sustaining at least two felony
convictions of either a crime of violence or a controlled substance offense;
(3) 22, if the offense involved a
firearm described in 26 U.S.C. § 5845(a) or 18 U.S.C. § 921(a)(30),
and the defendant committed any part of the instant offense subsequent to
sustaining one felony conviction of either a crime of violence or a controlled
substance offense;
(4) 20, if --
(A) the defendant committed any part of the instant offense subsequent
to sustaining one felony conviction of either a crime of violence or a
controlled substance offense; or
(B) the offense involved a firearm described in 26 U.S.C. §
5845(a) or 18 U.S.C. § 921(a)(30); and the defendant (i) was
a prohibited person at the time the defendant committed the instant offense;
or (ii) is convicted under 18 U.S.C. § 922(d);
(5) 18, if the offense involved a
firearm described in 26 U.S.C. § 5845(a) or 18 U.S.C. § 921(a)(30);
(6) 14, if the defendant (A) was
a prohibited person at the time the defendant committed the instant offense;
or (B) is convicted under 18 U.S.C. § 922(d);
(7) 12, except as provided below;
or
(8) 6, if the defendant is convicted
under 18 U.S.C. § 922(c), (e), (f), (m), (s), (t), or (x)(1).
(b) Specific Offense Characteristics
(1) If the offense involved three or more firearms, increase as follows:
|
Number
of Firearms |
Increase
in Level |
(A) |
3-7 |
add 2 |
(B) |
8-24 |
add 4 |
(C) |
25-99 |
add 6 |
(D) |
100-199 |
add 8 |
(E) |
200 or more |
add 10. |
(2) If the defendant, other than a defendant subject to subsection
(a)(1), (a)(2), (a)(3), (a)(4), or (a)(5), possessed all ammunition and firearms
solely for lawful sporting purposes or collection, and did not unlawfully
discharge or otherwise unlawfully use such firearms or ammunition, decrease
the offense level determined above to level 6.
(3) If the offense involved—
(A) a destructive device that is a portable rocket, a missile, or a device
for use in launching a portable rocket or a missile, increase by 15 levels;
or
(B) a destructive device other than a destructive device referred to in
subdivision (A), increase by 2 levels.
(4) If any firearm was stolen, or had an altered or obliterated serial number,
increase by 2 levels.
The cumulative offense level determined from the application of subsections
(b)(1) through (b)(4) may not exceed level 29,
except if subsection (b)(3)(A) applies.
(5) If the defendant used or possessed any firearm or ammunition in connection
with another felony offense; or possessed or transferred any firearm or ammunition
with knowledge, intent, or reason to believe that it would be used or possessed
in connection with another felony offense, increase by 4 levels.
If the resulting offense level is less than level 18,
increase to level 18.
(6) If a recordkeeping offense reflected an effort to conceal a substantive
offense involving firearms or ammunition, increase to the offense level for
the substantive offense.
(c) Cross Reference
(1) If the defendant used or possessed any firearm or ammunition in connection
with the commission or attempted commission of another offense, or possessed
or transferred a firearm or ammunition with knowledge or intent that it would
be used or possessed in connection with another offense, apply --
(A) §2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that
other offense, if the resulting offense level is greater than that determined
above; or
(B) if death resulted, the most analogous offense guideline from Chapter
Two, Part A, Subpart 1 (Homicide), if the resulting offense level is greater
than that determined above.
Commentary
Statutory Provisions: 18
U.S.C. §§ 922(a)-(p), (r)-(w), (x)(1), 924(a), (b), (e)-(i), (k)-(o);
26 U.S.C. § 5861(a)-(l). For additional statutory provisions, see Appendix
A (Statutory Index).
Application Notes:
1. Definitions.— For
purposes of this guideline:
"Ammunition" has the meaning given that term in 18 U.S.C. §
921(a)(17)(A).
"Controlled substance offense" has the meaning given that term in §4B1.2(b)
and Application Note 1 of the Commentary to §4B1.2 (Definitions of Terms
Used in Section 4B1.1).
"Crime of violence" has the meaning given that term in
§4B1.2(a) and Application Note 1 of the Commentary to §4B1.2.
"Destructive device" has the meaning given that term in 26 U.S.C. § 5845(f).
"Felony conviction" means a prior adult federal or state conviction for an
offense punishable by death or imprisonment for a term exceeding one year,
regardless of whether such offense is specifically designated as a felony and
regardless of the actual sentence imposed. A conviction for an offense committed
at age eighteen years or older is an adult conviction. A conviction for an
offense committed prior to age eighteen years is an adult conviction if it
is classified as an adult conviction under the laws of the jurisdiction in
which the defendant was convicted (e.g.,
a federal conviction for an offense committed prior to the defendant’s
eighteenth birthday is an adult conviction if the defendant was expressly proceeded
against as an adult).
"Firearm" has the meaning given that term in 18 U.S.C. §
921(a)(3).
2. Firearm Described in 18 U.S.C. § 921(a)(30).—For
purposes of subsection (a), a "firearm described in 18 U.S.C. § 921(a)(30)"
(pertaining to semiautomatic assault weapons) does not include a weapon exempted
under the provisions of 18 U.S.C. §
922(v)(3).
3. For purposes of subsections (a)(4)(B) and (a)(6),
"prohibited person" means any person described in 18 U.S.C. §
922(g) or § 922(n).
4. "Felony offense," as used in subsection (b)(5), means any offense (federal,
state, or local) punishable by imprisonment for a term exceeding one year,
whether or not a criminal charge was brought, or conviction obtained.
5. Subsection (a)(7) includes the interstate transportation or interstate
distribution of firearms, which is frequently committed in violation of state,
local, or other federal law restricting the possession of firearms, or for
some other underlying unlawful purpose. In the unusual case in which it is
established that neither avoidance of state, local, or other federal firearms
law, nor any other underlying unlawful purpose was involved, a reduction in
the base offense level to no lower than level 6 may be warranted to reflect
the less serious nature of the violation.
6. For purposes of calculating the number of firearms under subsection (b)(1),
count only those firearms that were unlawfully sought to be obtained, unlawfully
possessed, or unlawfully distributed, including any firearm that a defendant
obtained or attempted to obtain by making a false statement to a licensed dealer.
7. Under subsection (b)(2), "lawful sporting purposes or collection" as determined
by the surrounding circumstances, provides for a reduction to an offense level
of 6. Relevant surrounding circumstances include the number and type of firearms,
the amount and type of ammunition, the location and circumstances of possession
and actual use, the nature of the defendant’s criminal history (e.g.,
prior convictions for offenses involving firearms), and the extent to which
possession was restricted by local law. Note that where the base offense level
is determined under subsections (a)(1) - (a)(5), subsection (b)(2) is not applicable.
8. A defendant whose offense involves a destructive device receives both
the base offense level from the subsection applicable to a firearm listed in
26 U.S.C. § 5845(a) (e.g.,
subsection (a)(1), (a)(3), (a)(4)(B), or (a)(5)), and the applicable enhancement
under subsection (b)(3). Such devices pose a considerably greater risk to the
public welfare than other National Firearms Act weapons.
Offenses involving such devices cover a wide range of offense conduct and
involve different degrees of risk to the public welfare depending on the type
of destructive device involved and the location or manner in which that destructive
device was possessed or transported. For example, a pipe bomb in a populated
train station creates a substantially greater risk to the public welfare, and
a substantially greater risk of death or serious bodily injury, than an incendiary
device in an isolated area. In a case in which the cumulative result of the
increased base offense level and the enhancement under subsection (b)(3) does
not adequately capture the seriousness of the offense because of the type of
destructive device involved, the risk to the public welfare, or the risk of
death or serious bodily injury that the destructive device created, an upward
departure may be warranted. See also §§5K2.1
(Death), 5K2.2 (Physical Injury), and 5K2.14 (Public Welfare).
9.If the only offense to which §2K2.1 applies is 18 U.S.C. §
922(i), (j), or (u), or 18 U.S.C. § 924(l) or (m) (offenses involving
a stolen firearm or stolen ammunition) and the base offense level is determined
under subsection (a)(7), do not apply the adjustment in subsection (b)(4) unless
the offense involved a firearm with an altered or obliterated serial number.
This is because the base offense level takes into account that the firearm
or ammunition was stolen.
Similarly, if the offense to which §2K2.1 applies is 18 U.S.C.
§ 922(k) or 26 U.S.C. § 5861(g) or (h) (offenses involving an altered
or obliterated serial number) and the base offense level is determined under
subsection (a)(7), do not apply the adjustment in subsection (b)(4) unless
the offense involved a stolen firearm or stolen ammunition. This is because
the base offense level takes into account that the firearm had an altered or
obliterated serial number.
10. Under subsection (b)(6), if a record-keeping offense was committed to
conceal a substantive firearms or ammunition offense, the offense level is
increased to the offense level for the substantive firearms or ammunition offense
(e.g., if the defendant falsifies
a record to conceal the sale of a firearm to a prohibited person, the offense
level is increased to the offense level applicable to the sale of a firearm
to a prohibited person).
11. Under subsection (c)(1), the offense level for the underlying offense
(which may be a federal, state, or local offense) is to be determined under §2X1.1
(Attempt, Solicitation, or Conspiracy) or, if death results, under the most
analogous guideline from Chapter Two, Part A, Subpart 1 (Homicide).
12. For purposes of applying subsection (a)(1), (2), (3), or (4)(A), use
only those felony convictions that receive criminal history points under §4A1.1(a),
(b), or (c). In addition, for purposes of applying subsection (a)(1) and (a)(2),
use only those felony convictions that are counted separately under
§4A1.1(a), (b), or (c). See §4A1.2(a)(2); §4A1.2,
comment. (n.3).
Prior felony conviction(s) resulting in an increased base offense level under
subsection (a)(1), (a)(2), (a)(3), (a)(4)(A), (a)(4)(B), or (a)(6) are also
counted for purposes of determining criminal history points pursuant to Chapter
Four, Part A (Criminal History).
13. An upward departure may be warranted in any of the following circumstances:
(1) the number of firearms substantially exceeded 200; (2) the offense involved
multiple National Firearms Act weapons (e.g.,
machineguns, destructive devices), military type assault rifles, non-detectable
("plastic") firearms (defined at 18 U.S.C. § 922(p)); (3) the offense
involved large quantities of armor-piercing ammunition (defined at 18 U.S.C. § 921(a)(17)(B));
or (4) the offense posed a substantial risk of death or bodily injury to multiple
individuals (see Application
Note 8).
14. A defendant who is subject to an enhanced sentence under the provisions
of 18 U.S.C. § 924(e) is an Armed Career Criminal. See §4B1.4.
15. As used in subsections (b)(5) and (c)(1), "another felony offense" and "another
offense" refer to offenses other than explosives or firearms possession or
trafficking offenses. However, where the defendant used or possessed a firearm
or explosive to facilitate another firearms or explosives offense (e.g.,
the defendant used or possessed a firearm to protect the delivery of an unlawful
shipment of explosives), an upward departure under §5K2.6 (Weapons and
Dangerous Instrumentalities) may be warranted.
16. The enhancement under subsection (b)(4) for a stolen firearm or a firearm
with an altered or obliterated serial number applies whether or not the defendant
knew or had reason to believe that the firearm was stolen or had an altered
or obliterated serial number.
Historical Note: Effective
November 1, 1987. Amended effective November 1, 1989 (see Appendix
C, amendment 189); November 1, 1990 (see Appendix
C, amendment 333); November 1, 1991 (see Appendix
C, amendment 374); November 1, 1992 (see Appendix
C, amendment 471); November 1, 1993 (see Appendix
C, amendment 478); November 1, 1995 (see Appendix
C, amendment 522); November 1, 1997 (see Appendix
C, amendments 568 and 575); November 1, 1998 (see Appendix
C, amendments 578 and 586); November 1, 2000 (see Appendix
C, amendment 605); November 1, 2001 (see Appendix
C, amendments 629-631); November 1, 2002 (see Appendix
C, amendment 646); November 1, 2004 (see Appendix
C, amendment 669); November 1, 2005 (see Appendix
C, amendments 679 and 680).