Amendment: Section 2B3.2(b) is amended by deleting subdivisions (1) and (2) as follows:
"(1) If the greater of the amount obtained or demanded exceeded $2,500, increase by the corresponding number of levels from the table in §2B2.1(b)(2).
(2) (A) If a firearm was discharged, increase by 5 levels; (B) if a dangerous weapon (including a firearm) was otherwise used, increase by 4 levels; (C) if a dangerous weapon (including a firearm) was brandished, displayed, or possessed, increase by 3 levels.";
by renumbering subdivisions (3) and (4) as (4) and (5) respectively; by inserting the following as subdivisions (1)-(3):
"(1) If the offense involved an express or implied threat of death, bodily injury, or kidnapping, increase by 2 levels.
(2) If the greater of the amount demanded or the loss to the victim exceeded $10,000, increase by the corresponding number of levels from the table in §2B3.1(b)(6).
(3) (A)(i) If a firearm was discharged, increase by 7 levels; (ii) if a firearm was otherwise used, increase by 6 levels; (iii) if a firearm was brandished, displayed, or possessed, increase by 5 levels; (iv) if a dangerous weapon was otherwise used, increase by 4 levels; or (v) if a dangerous weapon was brandished, displayed, or possessed, increase by 3 levels; or
(B) If the offense involved preparation to carry out a threat of (i) death, (ii) serious bodily injury, (iii) kidnapping, or (iv) product tampering; or if the participant(s) otherwise demonstrated the ability to carry out such threat, increase by 3 levels.";
and in the last sentence of the renumbered subdivision (4) (formerly (3)) by deleting "(2)", "(3)" and "9", and inserting in lieu thereof "(3)", "(4)", and "11", respectively.
Section 2B3.2 is amended by inserting the following additional subsection:
"(c) Cross Reference
(1) 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.".
The Commentary to §2B3.2 captioned "Application Notes" is amended in Note 1 by inserting "‘bodily injury,’ ‘serious bodily injury,’ ‘permanent or life-threatening bodily injury,’" immediately before "abducted"; and in Note 4 by deleting "9" and inserting in lieu thereof "11".
The Commentary to §2B3.2 captioned "Application Notes" is amended by deleting:
"5. Valuation of loss is discussed in the Commentary to §2B1.1 (Larceny, Embezzlement, and Other Forms of Theft).",
and inserting in lieu thereof:
"5. ‘Loss to the victim,’ as used in subsection (b)(2), means any demand paid plus any additional consequential loss from the offense (e.g., the cost of defensive measures taken in direct response to the offense).
6. In certain cases, an extortionate demand may be accompanied by conduct that does not qualify as a display of a dangerous weapon under subsection (b)(3)(A)(v) but is nonetheless similar in seriousness, demonstrating the defendant’s preparation or ability to carry out the threatened harm (e.g., an extortionate demand containing a threat to tamper with a consumer product accompanied by a workable plan showing how the product’s tamper-resistant seals could be defeated, or a threat to kidnap a person accompanied by information showing study of that person’s daily routine). Subsection (b)(3)(B) addresses such cases.
7. If the offense involved the threat of death or serious bodily injury to numerous victims (e.g., in the case of a plan to derail a passenger train or poison consumer products), an upward departure may be warranted.
8. If the offense involved organized criminal activity, or a threat to a family member of the victim, an upward departure may be warranted.".
The Commentary to §2B3.2 captioned "Background" is amended in the last sentence by deleting "§ 877" and inserting in lieu thereof "18 U.S.C. § 877".
Reason for Amendment: This amendment provides a specific offense characteristic to distinguish the greater seriousness of offenses that involve an express or implied threat of death, bodily injury, or kidnapping; conforms the loss table to that used in the robbery guideline to reflect that the typical case under the amended guideline will have an offense level that is more closely comparable to robbery; increases the offense levels for offenses involving use or possession of a firearm to conform to an amendment being made to the robbery guideline; adds a subdivision to the specific offense characteristic dealing with use or possession of a dangerous weapon to address cases in which the conduct is tantamount in seriousness to the brandishing, display, or possession of a dangerous weapon, but does not qualify under the current specific offense characteristic for weapon enhancement; modifies subsection (b)(1) to provide that the greater of the amount demanded or the loss to the victim is used; adds a cross reference to §2A2.1 to address cases in which the conduct was tantamount to attempted murder; and sets forth commentary describing certain aggravating factors that may warrant an upward departure.
Effective Date: The effective date of this amendment is November 1, 1991.