2005 Federal Sentencing Guidelines
Chapter 2 - PART X - OTHER OFFENSES
§2X1.1. Attempt, Solicitation,
or Conspiracy (Not Covered by a Specific Offense Guideline)
(a) Base Offense Level: The base offense level from the guideline for the
substantive offense, plus any adjustments from such guideline for any intended
offense conduct that can be established with reasonable certainty.
(b) Specific Offense Characteristics
(1) If an attempt, decrease by 3 levels,
unless the defendant completed all the acts the defendant believed necessary
for successful completion of the substantive offense or the circumstances
demonstrate that the defendant was about to complete all such acts but for
apprehension or interruption by some similar event beyond the defendant’s
control.
(2) If a conspiracy, decrease by 3 levels,
unless the defendant or a co-conspirator completed all the acts the conspirators
believed necessary on their part for the successful completion of the substantive
offense or the circumstances demonstrate that the conspirators were about
to complete all such acts but for apprehension or interruption by some similar
event beyond their control.
(3) (A) If a solicitation, decrease by 3 levels
unless the person solicited to commit or aid the substantive offense completed
all the acts he believed necessary for successful completion of the substantive
offense or the circumstances demonstrate that the person was about to complete
all such acts but for apprehension or interruption by some similar event
beyond such person’s control.
(B) If the statute treats solicitation of the substantive offense identically
with the substantive offense, do not apply subdivision (A) above; i.e.,
the offense level for solicitation is the same as that for the substantive
offense.
(c) Cross Reference
(1) When an attempt, solicitation, or conspiracy is expressly covered by
another offense guideline section, apply that guideline section.
(d) Special Instruction
(1) Subsection (b) shall not apply to:
(A) Any of the following offenses, if such offense involved, or was intended
to promote, a federal crime of terrorism as defined in 18 U.S.C. § 2332b(g)(5):
18 U.S.C. § 81;
18 U.S.C. § 930(c);
18 U.S.C. § 1362;
18 U.S.C. § 1363;
18 U.S.C. § 1992;
18 U.S.C. § 2339A;
18 U.S.C. § 2340A;
49 U.S.C. § 46504;
49 U.S.C. § 46505; and
49 U.S.C. § 60123(b).
(B) Any of the following offenses:
18 U.S.C. § 32;
18 U.S.C. § 1993; and
18 U.S.C. § 2332a.
Commentary
Statutory Provisions: 18
U.S.C. §§ 371, 372, 2271. For additional statutory provision(s), see Appendix
A (Statutory Index).
Application Notes:
1. Certain attempts, conspiracies, and solicitations are expressly covered
by other offense guidelines.
Offense guidelines that expressly cover attempts include:
§§2A2.1, 2A3.1, 2A3.2, 2A3.3, 2A3.4, 2A4.2, 2A5.1;
§§2C1.1, 2C1.2;
§§2D1.1, 2D1.2, 2D1.5, 2D1.6, 2D1.7, 2D1.8, 2D1.9, 2D1.10, 2D1.11,
2D1.12, 2D1.13, 2D2.1, 2D2.2, 2D3.1, 2D3.2;
§2E5.1;
§2M6.1;
§2N1.1;
§2Q1.4.
Offense guidelines that expressly cover conspiracies include:
§2A1.5;
§§2D1.1, 2D1.2, 2D1.5, 2D1.6, 2D1.7, 2D1.8, 2D1.9, 2D1.10, 2D1.11,
2D1.12, 2D1.13, 2D2.1, 2D2.2, 2D3.1, 2D3.2;
§2H1.1;
§2M6.1;
§2T1.9.
Offense guidelines that expressly cover solicitations include:
§2A1.5;
§§2C1.1, 2C1.2;
§2E5.1.
2. "Substantive offense," as used in this guideline, means the offense that
the defendant was convicted of soliciting, attempting, or conspiring to commit.
Under §2X1.1(a), the base offense level will be the same as that for the
substantive offense. But the only specific offense characteristics from the
guideline for the substantive offense that apply are those that are determined
to have been specifically intended or actually occurred. Speculative specific
offense characteristics will not be applied. For example, if two defendants
are arrested during the conspiratorial stage of planning an armed bank robbery,
the offense level ordinarily would not include aggravating factors regarding
possible injury to others, hostage taking, discharge of a weapon, or obtaining
a large sum of money, because such factors would be speculative. The offense
level would simply reflect the level applicable to robbery of a financial institution,
with the enhancement for possession of a weapon. If it was established that
the defendants actually intended to physically restrain the teller, the specific
offense characteristic for physical restraint would be added. In an attempted
theft, the value of the items that the defendant attempted to steal would be
considered.
3. If the substantive offense is not covered by a specific guideline, see §2X5.1
(Other Offenses).
4. In certain cases, the participants may have completed (or have been about
to complete but for apprehension or interruption) all of the acts necessary
for the successful completion of part, but not all, of the intended offense.
In such cases, the offense level for the count (or group of closely related
multiple counts) is whichever of the following is greater: the offense level
for the intended offense minus 3 levels (under §2X1.1(b)(1), (b)(2), or
(b)(3)(A)), or the offense level for the part of the offense for which the
necessary acts were completed (or about to be completed but for apprehension
or interruption). For example, where the intended offense was the theft of
$800,000 but the participants completed (or were about to complete) only the
acts necessary to steal $30,000, the offense level is the offense level for
the theft of $800,000 minus 3 levels, or the offense level for the theft
of $30,000, whichever is greater.
In the case of multiple counts that are not closely related counts, whether
the 3-level reduction under §2X1.1(b)(1), (b)(2), or (b)(3)(A) applies
is determined separately for each count.
Background: In most prosecutions
for conspiracies or attempts, the substantive offense was substantially completed
or was interrupted or prevented on the verge of completion by the intercession
of law enforcement authorities or the victim. In such cases, no reduction of
the offense level is warranted. Sometimes, however, the arrest occurs well
before the defendant or any co-conspirator has completed the acts necessary
for the substantive offense. Under such circumstances, a reduction of 3 levels
is provided under §2X1.1(b)(1) or (2).
Historical Note: Effective
November 1, 1987. Amended effective January 15, 1988 (see Appendix
C, amendment 42); November 1, 1989 (see Appendix
C, amendments 238-242); November 1, 1990 (see Appendix
C, amendments 311 and 327); November 1, 1991 (see Appendix
C, amendment 411); November 1, 1992 (see Appendix
C, amendments 444 and 447); November 1, 1993 (see Appendix
C, amendment 496); November 1, 2001 (see Appendix
C, amendment 633); November 1, 2002 (see Appendix
C, amendment 637); November 1, 2004 (see Appendix
C, amendment 669).