Amendment: The Commentary to §2E1.1 captioned "Application Notes" is amended by inserting the following additional note:

"4. Certain conduct may be charged in the count of conviction as part of a ‘pattern of racketeering activity’ even though the defendant has previously been sentenced for that conduct. Where such previously imposed sentence resulted from a conviction prior to the last overt act of the instant offense, treat as a prior sentence under §4A1.2(a)(1) and not as part of the instant offense. This treatment is designed to produce a result consistent with the distinction between the instant offense and criminal history found throughout the guidelines. If this treatment produces an anomalous result in a particular case, a guideline departure may be warranted.".

Reason for Amendment: The purpose of this amendment is to clarify the treatment of certain conduct for which the defendant previously has been sentenced as either part of the instant offense or prior criminal record.

Effective Date: The effective date of this amendment is November 1, 1989.