2005 Federal Sentencing Guidelines
Chapter 2 - PART M - OFFENSES INVOLVING NATIONAL DEFENSE AND WEAPONS OF
MASS DESTRUCTION
§2M6.1. Unlawful Production,
Development, Acquisition, Stockpiling, Alteration, Use, Transfer, or Possession
of Nuclear Material, Weapons, or Facilities, Biological Agents, Toxins, or
Delivery Systems, Chemical Weapons, or Other Weapons of Mass Destruction;
Attempt or Conspiracy
(a) Base Offense Level (Apply the Greatest):
(1) 42, if the offense was committed
with intent (A) to injure the United States; or (B) to aid a foreign nation
or a foreign terrorist organization;
(2) 28, if subsections (a)(1), (a)(3), and
(a)(4) do not apply;
(3) 22, if the defendant is convicted
under 18 U.S.C. § 175b; or
(4) 20, if (A) the defendant is convicted
under 18 U.S.C. §
175(b); or (B) the offense (i) involved a threat to use a nuclear weapon,
nuclear material, or nuclear byproduct material, a chemical weapon, a biological
agent, toxin, or delivery system, or a weapon of mass destruction; but (ii)
did not involve any conduct evidencing an intent or ability to carry out
the threat.
(b) Specific Offense Characteristics
(1) If (A) subsection (a)(2) or (a)(4)(A) applies; and (B) the offense involved
a threat to use, or otherwise involved (i) a select biological agent; (ii)
a listed precursor or a listed toxic chemical; (iii) nuclear material or
nuclear byproduct material; or (iv) a weapon of mass destruction that contains
any agent, precursor, toxic chemical, or material referred to in subdivision
(i), (ii), or (iii), increase by 2 levels.
(2) If (A) subsection (a)(2), (a)(3), or (a)(4)(A) applies; and (B)(i) any
victim died or sustained permanent or life-threatening bodily injury, increase
by 4 levels; (ii) any victim sustained
serious bodily injury, increase by 2 levels;
or (iii) the degree of injury is between that specified in subdivisions (i)
and (ii), increase by 3 levels.
(3) If (A) subsection (a)(2), (a)(3), or (a)(4) applies; and (B) the offense
resulted in (i) substantial disruption of public, governmental, or business
functions or services; or (ii) a substantial expenditure of funds to clean
up, decontaminate, or otherwise respond to the offense, increase by 4 levels.
(c) Cross References
(1) If the offense resulted in death, apply §2A1.1 (First Degree Murder)
if the death was caused intentionally or knowingly, or
§2A1.2 (Second Degree Murder) otherwise, if the resulting offense level
is greater than that determined above.
(2) If the offense was tantamount to attempted murder, apply
§2A2.1 (Assault with Intent to Commit Murder; Attempted Murder), if
the resulting offense level is greater than that determined above.
(d) Special Instruction
(1) If the defendant is convicted of a single count involving (A) conduct
that resulted in the death or permanent, life-threatening, or serious bodily
injury of more than one victim, or (B) conduct tantamount to the attempted
murder of more than one victim, Chapter Three, Part D (Multiple Counts) shall
be applied as if such conduct in respect to each victim had been contained
in a separate count of conviction.
Commentary
Statutory Provisions: 18
U.S.C. §§ 175, 175b, 229, 831, 842(p)(2) (only with respect to weapons
of mass destruction as defined in 18 U.S.C. § 2332a(c)(2)(B), (C),
and (D)), 1993(a)(2), (3), (b), 2332a (only with respect to weapons of mass
destruction as defined in 18 U.S.C. § 2332a(c)(2)(B), (C), and (D)); 42
U.S.C. §§ 2077(b), 2122, 2131. For additional statutory provision(s), see Appendix
A (Statutory Index).
Application Notes:
1. Definitions.—For
purposes of this guideline:
"Biological agent" has the meaning given that term in 18 U.S.C. §
178(1).
"Chemical weapon" has the meaning given that term in 18 U.S.C. §
229F(1).
"Foreign terrorist organization" (A) means an organization that engages in
terrorist activity that threatens the security of a national of the United
States or the national security of the United States; and (B) includes an organization
designated by the Secretary of State as a foreign terrorist organization pursuant
to section 219 of the Immigration and Nationality Act (8 U.S.C. §
1219). "National of the United States" has the meaning given that term in
section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. § 1101(a)(22)).
"Listed precursor or a listed toxic chemical" means a precursor or a toxic
chemical, respectively, listed in Schedule I of the Annex on Chemicals to the
Chemical Weapons Convention. See 18
U.S.C. § 229F(6)(B), (8)(B). "Precursor" has the meaning given that term
in 18 U.S.C. § 229F(6)(A). "Toxic chemical" has the meaning given that
term in 18 U.S.C. § 229F(8)(A).
"Nuclear byproduct material" has the meaning given that term in 18 U.S.C. § 831(f)(2).
"Nuclear material" has the meaning given that term in 18 U.S.C. §
831(f)(1).
"Restricted person" has the meaning given that term in 18 U.S.C.
§ 175b(b)(2).
"Select biological agent" means a biological agent or toxin identified (A)
by the Secretary of Health and Human Services on the select agent list established
and maintained pursuant to section 351A of the Public Health Service Act (42
U.S.C. § 262a); or (B) by the Secretary of Agriculture on the list established
and maintained pursuant to section 212 of the Agricultural Bioterrorism Protection
Act of 2002 (7 U.S.C. § 8401).
"Toxin" has the meaning given that term in 18 U.S.C. § 178(2).
"Vector" has the meaning given that term in 18 U.S.C. § 178(4).
"Weapon of mass destruction" has the meaning given that term in 18 U.S.C. § 2332a(c)(2)(B),
(C), and (D).
2. Threat Cases.—Subsection
(a)(4)(B) applies in cases that involved a threat to use a weapon, agent, or
material covered by this guideline but that did not involve any conduct evidencing
an intent or ability to carry out the threat. For example, subsection (a)(4)(B)
would apply in a case in which the defendant threatened to contaminate an area
with anthrax and also dispersed into the area a substance that appeared to
be anthrax but that the defendant knew to be harmless talcum powder. In such
a case, the dispersal of talcum powder does not evidence an intent on the defendant’s
part to carry out the threat. In contrast, subsection (a)(4)(B) would not apply
in a case in which the defendant threatened to contaminate an area with anthrax
and also dispersed into the area a substance that the defendant believed to
be anthrax but that in fact was harmless talcum powder. In such a case, the
dispersal of talcum powder was conduct evidencing an intent to carry out the
threat because of the defendant’s belief that the talcum powder was anthrax.
Subsection (a)(4)(B) shall not apply in any case involving both a threat
to use any weapon, agent, or material covered by this guideline and the possession
of that weapon, agent, or material. In such a case, possession of the weapon,
agent, or material is conduct evidencing an intent to use that weapon, agent,
or material.
3. Application of Special Instruction.—Subsection
(d) applies in any case in which the defendant is convicted of a single count
involving (A) the death or permanent, life-threatening, or serious bodily injury
of more than one victim, or (B) conduct tantamount to the attempted murder
of more than one victim, regardless of whether the offense level is determined
under this guideline or under another guideline in Chapter Two (Offense Conduct)
by use of a cross reference under subsection (c).
Historical Note: Effective
November 1, 1987. Amended effective November 1, 2001 (see Appendix
C, amendment 633); November 1, 2002 (see Appendix
C, amendment 637); November 1, 2003 (see Appendix
C, amendment 655); November 1, 2005 (see Appendix
C, amendment 679).