2005 Federal Sentencing Guidelines
Chapter 2 - PART
K - OFFENSES INVOLVING PUBLIC SAFETY
§2K2.4. Use of Firearm, Armor-Piercing
Ammunition, or Explosive During or in Relation to Certain Crimes
(a) If the defendant, whether or not convicted of another crime, was convicted
of violating section 844(h) of title 18, United States Code, the guideline
sentence is the term of imprisonment required by statute. Chapters Three (Adjustments)
and Four (Criminal History and Criminal Livelihood) shall not apply to that
count of conviction.
(b) Except as provided in subsection (c), if the defendant, whether or not
convicted of another crime, was convicted of violating section 924(c) or section
929(a) of title 18, United States Code, the guideline sentence is the minimum
term of imprisonment required by statute. Chapters Three and Four shall not
apply to that count of conviction.
(c) If the defendant (1) was convicted of violating section 924(c) or section
929(a) of title 18, United States Code; and (2) as a result of that conviction
(alone or in addition to another offense of conviction), is determined to be
a career offender under §4B1.1 (Career Offender), the guideline sentence
shall be determined under §4B1.1(c). Except for §§3E1.1 (Acceptance
of Responsibility), 4B1.1, and 4B1.2 (Definitions of Terms Used in Section
4B1.1), Chapters Three and Four shall not apply to that count of conviction.
(d) Special Instructions for Fines
(1) Where there is a federal conviction for the underlying offense, the
fine guideline shall be the fine guideline that would have been applicable
had there only been a conviction for the underlying offense. This guideline
shall be used as a consolidated fine guideline for both the underlying offense
and the conviction underlying this section.
Commentary
Statutory Provisions: 18
U.S.C. §§ 844(h), 924(c), 929(a).
Application Notes:
1. Application of Subsection (a).—Section 844(h) of title 18,
United State Code, provides a mandatory term of imprisonment of 10 years (or
20 years for the second or subsequent offense). Accordingly, the guideline
sentence for a defendant convicted under 18 U.S.C. § 844(h) is the
term required by that statute. Section 844(h) of title 18, United State Code,
also requires a term of imprisonment imposed under this section to run consecutively
to any other term of imprisonment.
2. Application of Subsection (b).—
(A) In General.—Sections
924(c) and 929(a) of title 18, United States Code, provide mandatory minimum
terms of imprisonment (e.g.,
not less than five years). Except as provided in subsection (c), in a case
in which the defendant is convicted under 18 U.S.C. § 924(c) or § 929(a),
the guideline sentence is the minimum term required by the relevant statute.
Each of 18 U.S.C. §§ 924(c) and 929(a) also requires that
a term of imprisonment imposed under that section shall run consecutively
to any other term of imprisonment.
(B) Upward Departure Provision.—In
a case in which the guideline sentence is determined under subsection (b),
a sentence above the minimum term required by 18 U.S.C. § 924(c) or § 929(a)
is an upward departure from the guideline sentence. A departure may be warranted,
for example, to reflect the seriousness of the defendant’s criminal
history in a case in which the defendant is convicted of an 18 U.S.C. § 924(c)
or §
929(a) offense but is not determined to be a career offender under §4B1.1.
3. Application of Subsection (c).—In a case in which the defendant
(A) was convicted of violating 18 U.S.C. § 924(c) or 18 U.S.C. § 929(a);
and (B) as a result of that conviction (alone or in addition to another offense
of conviction), is determined to be a career offender under §4B1.1 (Career
Offender), the guideline sentence shall be determined under
§4B1.1(c). In a case involving multiple counts, the sentence shall be
imposed according to the rules in subsection (e) of
§5G1.2 (Sentencing on Multiple Counts of Conviction).
4. Weapon Enhancement.— If a sentence under this guideline is
imposed in conjunction with a sentence for an underlying offense, do not apply
any specific offense characteristic for possession, brandishing, use, or discharge
of an explosive or firearm when determining the sentence for the underlying
offense. A sentence under this guideline accounts for any explosive or weapon
enhancement for the underlying offense of conviction, including any such enhancement
that would apply based on conduct for which the defendant is accountable under
§1B1.3 (Relevant Conduct). Do not apply any weapon enhancement in the
guideline for the underlying offense, for example, if (A) a co-defendant, as
part of the jointly undertaken criminal activity, possessed a firearm different
from the one for which the defendant was convicted under 18 U.S.C. § 924(c);
or (B) in an ongoing drug trafficking offense, the defendant possessed a firearm
other than the one for which the defendant was convicted under 18 U.S.C. § 924(c).
However, if a defendant is convicted of two armed bank robberies, but is convicted
under 18 U.S.C. § 924(c) in connection with only one of the robberies,
a weapon enhancement would apply to the bank robbery which was not the basis
for the 18 U.S.C. § 924(c) conviction.
If the explosive or weapon that was possessed, brandished, used, or discharged
in the course of the underlying offense also results in a conviction that would
subject the defendant to an enhancement under §2K1.3(b)(3) (pertaining
to possession of explosive material in connection with another felony offense)
or §2K2.1(b)(5) (pertaining to possession of any firearm or ammunition
in connection with another felony offense), do not apply that enhancement.
A sentence under this guideline accounts for the conduct covered by these enhancements
because of the relatedness of that conduct to the conduct that forms the basis
for the conviction under 18 U.S.C.
§ 844(h), § 924(c) or § 929(a). For example, if in addition
to a conviction for an underlying offense of armed bank robbery, the defendant
was convicted of being a felon in possession under 18 U.S.C. § 922(g),
the enhancement under §2K2.1(b)(5) would not apply.
In a few cases in which the defendant is determined not to be a career offender,
the offense level for the underlying offense determined under the preceding
paragraphs may result in a guideline range that, when combined with the mandatory
consecutive sentence under 18 U.S.C. § 844(h), § 924(c),
or §
929(a), produces a total maximum penalty that is less than the maximum of the
guideline range that would have resulted had there not been a count of conviction
under 18 U.S.C. § 844(h),
§ 924(c), or § 929(a) (i.e.,
the guideline range that would have resulted if the enhancements for possession,
use, or discharge of a firearm had been applied). In such a case, an upward
departure may be warranted so that the conviction under 18 U.S.C. § 844(h), § 924(c),
or § 929(a) does not result in a decrease in the total punishment. An
upward departure under this paragraph shall not exceed the maximum of the guideline
range that would have resulted had there not been a count of conviction under
18 U.S.C. § 844(h), § 924(c), or § 929(a).
5. Chapters Three and Four.—Except for those cases covered by
subsection (c), do not apply Chapter Three (Adjustments) and Chapter Four (Criminal
History and Criminal Livelihood) to any offense sentenced under this guideline.
Such offenses are excluded from application of those chapters because the guideline
sentence for each offense is determined only by the relevant statute. See §§3D1.1
(Procedure for Determining Offense Level on Multiple Counts) and 5G1.2. In
determining the guideline sentence for those cases covered by subsection (c):
(A) the adjustment in §3E1.1 (Acceptance of Responsibility) may apply,
as provided in §4B1.1(c); and (B) no other adjustments in Chapter Three
and no provisions of Chapter Four, other than §§4B1.1 and 4B1.2,
shall apply.
6. Terms of Supervised Release.— Imposition of a term of supervised
release is governed by the provisions of §5D1.1 (Imposition of a Term
of Supervised Release).
7. Fines.— Subsection (d) sets forth special provisions concerning
the imposition of fines. Where there is also a conviction for the underlying
offense, a consolidated fine guideline is determined by the offense level that
would have applied to the underlying offense absent a conviction under 18 U.S.C. § 844(h), § 924(c),
or § 929(a). This is required because the offense level for the underlying
offense may be reduced when there is also a conviction under 18 U.S.C. § 844(h), § 924(c),
or § 929(a) in that any specific offense characteristic for possession,
brandishing, use, or discharge of a firearm is not applied (see Application
Note 4). The Commission has not established a fine guideline range for the
unusual case in which there is no conviction for the underlying offense, although
a fine is authorized under 18 U.S.C. § 3571.
Background: Section 844(h)
of title 18, United States Code, provides a mandatory term of imprisonment.
Sections 924(c) and 929(a) of title 18, United States Code, provide mandatory
minimum terms of imprisonment. A sentence imposed pursuant to any of these
statutes must be imposed to run consecutively to any other term of imprisonment.
To avoid double counting, when a sentence under this section is imposed in
conjunction with a sentence for an underlying offense, any specific offense
characteristic for explosive or firearm discharge, use, brandishing, or possession
is not applied in respect to such underlying offense.
Historical Note: Effective
November 1, 1987. Amended effective November 1, 1989 (see Appendix
C, amendment 190); November 1, 1990 (see Appendix
C, amendment 332); November 1, 1991 (see Appendix
C, amendment 405); November 1, 1993 (see Appendix
C, amendments 481 and 489); November 1, 2000 (see Appendix
C, amendments 598, 599, and 600); November 1, 2002 (see Appendix
C, amendment 642).
