Amendment: The Commentary to §2B1.1 captioned "Application Notes" is amended in Note 2 by inserting the following additional sentence as the fourth sentence of the first paragraph:
"Loss does not include the interest that could have been earned had the funds not been stolen.";
and by inserting the following additional paragraphs as the second and third paragraphs:
"Where the offense involved making a fraudulent loan or credit card application, or other unlawful conduct involving a loan or credit card, the loss is to be determined under the principles set forth in the Commentary to §2F1.1 (Fraud and Deceit).
In certain cases, an offense may involve a series of transactions without a corresponding increase in loss. For example, a defendant may embezzle $5,000 from a bank and conceal this embezzlement by shifting this amount from one account to another in a series of nine transactions over a six-month period. In this example, the loss is $5,000 (the amount taken), not $45,000 (the sum of the nine transactions), because the additional transactions did not increase the actual or potential loss.".
The Commentary to §2B1.1 captioned "Application Notes" is amended by deleting Note 3 as follows:
"3. The loss need not be determined with precision, and may be inferred from any reasonably reliable information available, including the scope of the operation.",
and inserting in lieu thereof:
"3. For the purposes of subsection (b)(1), the loss need not be determined with precision. The court need only make a reasonable estimate of the loss, given the available information. This estimate, for example, may be based upon the approximate number of victims and the average loss to each victim, or on more general factors such as the scope and duration of the offense.".
The Commentary to §2B5.3 is amended by inserting the following immediately before "Background":
1. ‘Infringing items’ means the items that violate the copyright or trademark laws (not the legitimate items that are infringed upon).".
The Commentary to §2B6.1 captioned "Application Note" is amended in the caption by deleting "Note" and inserting in lieu thereof "Notes"; and by inserting the following additional Note:
"2. The ‘corresponding number of levels from the table in §2F1.1 (Fraud and Deceit),’ as used in subsection (b)(1), refers to the number of levels corresponding to the retail value of the motor vehicles or parts involved.".
Section 2F1.1(b)(3) is amended by deleting "or process" and by inserting in lieu thereof ", or process not addressed elsewhere in the guidelines".
The Commentary to §2F1.1 captioned "Application Notes" is amended in Note 5 in the first sentence by inserting a comma immediately following "decree"; and by inserting the following additional sentence at the end:
"This subsection does not apply to conduct addressed elsewhere in the guidelines; e.g., a violation of a condition of release (addressed in §2J1.7 (Offense Committed While on Release)) or a violation of probation (addressed in §4A1.1 (Criminal History Category)).".
The Commentary to §2F1.1 captioned "Application Notes" is amended in Note 7(b) in the second paragraph by inserting the following additional sentence at the end:
"Where the loss determined above significantly understates or overstates the seriousness of the defendant’s conduct, an upward or downward departure may be warranted.".
The Commentary to §2F1.1 captioned "Application Notes" is amended in Note 10 by deleting "the primary" and inserting in lieu thereof "a primary"; by inserting "; or the fraud caused or risked reasonably foreseeable, substantial non-monetary harm" immediately following "was non-monetary"; by deleting "physical or psychological harm" and inserting in lieu thereof "reasonably foreseeable, physical or psychological harm or severe emotional trauma"; by deleting the period immediately following "institution" and inserting in lieu thereof a semicolon; by inserting a new subdivision, immediately following subdivision (e), as follows:
"(f) the offense involved the knowing endangerment of the solvency of one or more victims.";
and by inserting the following additional sentence at the end of the last paragraph:
"In such cases, a downward departure may be warranted.".
The Commentary to §2F1.1 captioned "Application Notes" is amended in Note 11 by deleting the last two sentences as follows:
"The statutes provide for increased maximum terms of imprisonment for the use or possession of device-making equipment and the production or transfer of more than five identification documents or fifteen access devices. The court may find it appropriate to enhance the sentence for violations of these statutes in a manner similar to the treatment of analogous counterfeiting offenses under Part B of this Chapter.",
and inserting in lieu thereof:
"Where the primary purpose of the offense involved the unlawful production, transfer, possession, or use of identification documents for the purpose of violating, or assisting another to violate, the laws relating to naturalization, citizenship, or legal resident status, apply §2L2.1 or §2L2.2, as appropriate, rather than §2F1.1. In the case of an offense involving false identification documents or access devices, an upward departure may be warranted where the actual loss does not adequately reflect the seriousness of the conduct.".
Reason for Amendment: This amendment makes the definitions of loss in §§2B1.1 (Larceny, Embezzlement, and Other Forms of Theft) and 2F1.1 (Fraud and Deceit) more consistent. Although the term "reasonably reliable information" is deleted from §2B1.1 (there is no corresponding term in §2F1.1), no substantive change results because the reliability of the information considered in respect to all cases is already addressed in §6A1.3 (Resolution of Disputed Factors). In addition, this amendment provides additional guidance for the determination of loss in cases that are referenced to §2B1.1, but have loss characteristics closely resembling offenses referenced to §2F1.1, and in cases in which simply adding the amounts from a series of transactions does not reflect the amount taken or put at risk. This amendment also clarifies the meaning of the term "infringing items" in §2B5.3, and expressly provides that the reference in §2B6.1 to the table in §2F1.1 is to be applied using the retail value of the stolen parts. In addition, this amendment clarifies the operation of §2F1.1(b)(3) to avoid inappropriate double counting. Finally, this amendment revises the Commentary to §2F1.1 by expanding Application Note 10 to provide guidance in cases in which the monetary loss does not adequately reflect the seriousness of the offense, and by clarifying Application Note 11 and conforming the phraseology in this application note to that used elsewhere in the guidelines.
Effective Date: The effective date of this amendment is November 1, 1993.