Amendment: Section 2E5.2 is amended by deleting:
"(a) Base Offense Level: 4
(b) Specific Offense Characteristics
(1) If the offense involved more than minimal planning, increase by 2 levels.
(2) If the defendant had a fiduciary obligation under the Employee Retirement Income Security Act, increase by 2 levels.
(3) Increase by corresponding number of levels from the table in §2B1.1 (Larceny, Embezzlement, and Other Forms of Theft) according to the loss.",
and inserting in lieu thereof:
"Apply §2B1.1 (Larceny, Embezzlement, and Other Forms of Theft).".
The Commentary to §2E5.2 captioned "Application Notes" is amended by deleting:
"1. ‘More than minimal planning’ is defined in the Commentary to §1B1.1 (Application Instructions). Valuation of loss is discussed in the Commentary to §2B1.1 (Larceny, Embezzlement, and Other Forms of Theft)." and
"3. If the adjustment for a fiduciary obligation at §2E5.2(b)(2) is applied, do not apply the adjustment at §3B1.3 (Abuse of a Position of Trust or Use of a Special Skill).",
and by inserting in lieu of Note 1:
"1. In the case of a defendant who had a fiduciary obligation under the Employee Retirement Income Security Act, an adjustment under §3B1.3 (Abuse of Position of Trust or Use of Special Skill) would apply.".
The Commentary to §2E5.2 captioned "Background" is amended by deleting the second and third sentences as follows:
"The base offense level corresponds to the base offense level for other forms of theft. Specific offense characteristics address whether a defendant has a fiduciary relationship to the benefit plan, the sophistication of the offense, and the scale of the offense.".
Reason for Amendment: The purpose of this amendment is to simplify application of the guidelines.
Effective Date: The effective date of this amendment is November 1, 1989.