2005 Federal Sentencing Guidelines
Chapter 8 - PART C - FINES
§8C2.4. Base Fine
(a) The base fine is the greatest of:
(1) the amount from the table in subsection (d) below corresponding to the
offense level determined under §8C2.3 (Offense Level); or
(2) the pecuniary gain to the organization from the offense; or
(3) the pecuniary loss from the offense caused by the organization, to the
extent the loss was caused intentionally, knowingly, or recklessly.
(b) Provided, that if the applicable offense guideline in Chapter Two
includes a special instruction for organizational fines, that special instruction
shall be applied, as appropriate.
(c) Provided, further, that to the extent the calculation of either
pecuniary gain or pecuniary loss would unduly complicate or prolong the sentencing
process, that amount, i.e.,
gain or loss as appropriate, shall not be used for the determination of the
base fine.
(d) Offense Level Fine Table
Offense Level |
Amount |
|
|
6 or less |
$5,000 |
7 |
$7,500 |
8 |
$10,000 |
9 |
$15,000 |
10 |
$20,000 |
11 |
$30,000 |
12 |
$40,000 |
13 |
$60,000 |
14 |
$85,000 |
15 |
$125,000 |
16 |
$175,000 |
17 |
$250,000 |
18 |
$350,000 |
19 |
$500,000 |
20 |
$650,000 |
21 |
$910,000 |
22 |
$1,200,000 |
23 |
$1,600,000 |
24 |
$2,100,000 |
25 |
$2,800,000 |
26 |
$3,700,000 |
27 |
$4,800,000 |
28 |
$6,300,000 |
29 |
$8,100,000 |
30 |
$10,500,000 |
31 |
$13,500,000 |
32 |
$17,500,000 |
33 |
$22,000,000 |
34 |
$28,500,000 |
35 |
$36,000,000 |
36 |
$45,500,000 |
37 |
$57,500,000 |
38 or more |
$72,500,000. |
Commentary
Application Notes:
1. "Pecuniary gain," "pecuniary loss," and "offense" are defined in the Commentary
to §8A1.2 (Application Instructions - Organizations). Note that subsections
(a)(2) and (a)(3) contain certain limitations as to the use of pecuniary gain
and pecuniary loss in determining the base fine. Under subsection (a)(2), the
pecuniary gain used to determine the base fine is the pecuniary gain to the
organization from the offense. Under subsection (a)(3), the pecuniary loss
used to determine the base fine is the pecuniary loss from the offense caused
by the organization, to the extent that such loss was caused intentionally,
knowingly, or recklessly.
2. Under 18 U.S.C. § 3571(d), the court is not required to calculate
pecuniary loss or pecuniary gain to the extent that determination of loss or
gain would unduly complicate or prolong the sentencing process. Nevertheless,
the court may need to approximate loss in order to calculate offense levels
under Chapter Two. See Commentary
to §2B1.1 (Theft, Property Destruction, and Fraud). If loss is approximated
for purposes of determining the applicable offense level, the court should
use that approximation as the starting point for calculating pecuniary loss
under this section.
3. In a case of an attempted offense or a conspiracy to commit an offense,
pecuniary loss and pecuniary gain are to be determined in accordance with the
principles stated in §2X1.1 (Attempt, Solicitation, or Conspiracy).
4. In a case involving multiple participants (i.e.,
multiple organizations, or the organization and individual(s) unassociated
with the organization), the applicable offense level is to be determined without
regard to apportionment of the gain from or loss caused by the offense. See §1B1.3
(Relevant Conduct). However, if the base fine is determined under subsections
(a)(2) or (a)(3), the court may, as appropriate, apportion gain or loss considering
the defendant’s relative culpability and other pertinent factors. Note
also that under §2R1.1(d)(1), the volume of commerce, which is used in
determining a proxy for loss under
§8C2.4(a)(3), is limited to the volume of commerce attributable to the
defendant.
5. Special instructions regarding the determination of the base fine are
contained in §§2B4.1 (Bribery in Procurement of Bank Loan and Other
Commercial Bribery); 2C1.1 (Offering, Giving, Soliciting, or Receiving a Bribe;
Extortion Under Color of Official Right; Fraud Involving the Deprivation of
the Intangible Right to Honest Services of Public Officials; Conspiracy to
Defraud by Interference with Governmental Functions); 2C1.2 (Offering, Giving,
Soliciting, or Receiving a Gratuity); 2E5.1 (Offering, Accepting, or Soliciting
a Bribe or Gratuity Affecting the Operation of an Employee Welfare or Pension
Benefit Plan; Prohibited Payments or Lending of Money by Employer or Agent
to Employees, Representatives, or Labor Organizations); and 2R1.1 (Bid-Rigging,
Price-Fixing or Market-Allocation Agreements Among Competitors).
Background: Under this section,
the base fine is determined in one of three ways: (1) by the amount, based
on the offense level, from the table in subsection (d); (2) by the pecuniary
gain to the organization from the offense; and (3) by the pecuniary loss caused
by the organization, to the extent that such loss was caused intentionally,
knowingly, or recklessly. In certain cases, special instructions for determining
the loss or offense level amount apply. As a general rule, the base fine measures
the seriousness of the offense. The determinants of the base fine are selected
so that, in conjunction with the multipliers derived from the culpability score
in §8C2.5 (Culpability Score), they will result in guideline fine ranges
appropriate to deter organizational criminal conduct and to provide incentives
for organizations to maintain internal mechanisms for preventing, detecting,
and reporting criminal conduct. In order to deter organizations from seeking
to obtain financial reward through criminal conduct, this section provides
that, when greatest, pecuniary gain to the organization is used to determine
the base fine. In order to ensure that organizations will seek to prevent losses
intentionally, knowingly, or recklessly caused by their agents, this section
provides that, when greatest, pecuniary loss is used to determine the base
fine in such circumstances. Chapter Two provides special instructions for fines
that include specific rules for determining the base fine in connection with
certain types of offenses in which the calculation of loss or gain is difficult, e.g.,
price-fixing. For these offenses, the special instructions tailor the base
fine to circumstances that occur in connection with such offenses and that
generally relate to the magnitude of loss or gain resulting from such offenses.
Historical Note: Effective
November 1, 1991 (see Appendix
C, amendment 422). Amended effective November 1, 1993 (see Appendix
C, amendment 496); November 1, 1995 (see Appendix
C, amendment 534); November 1, 2001 (see Appendix
C, amendment 634); November 1, 2004 (see Appendix
C, amendments 666 and 673).