AMENDMENT 531

Amendment: Chapter Five, Part K, Subpart Two is amended by inserting an additional policy statement as §5K2.17 (High-Capacity, Semiautomatic Firearms).

Reason for Amendment: This amendment addresses the directive in section 110501 of the Violent Crime Control and Law Enforcement Act of 1994 to provide an appropriate enhancement for a crime of violence or drug trafficking crime if a semiautomatic firearm is involved.

According to data reviewed by the Commission, semiautomatic firearms are used in 50-70 percent of offenses involving a firearm. Thus, offenses involving a semiautomatic firearm represent the typical or "heartland" case under the guidelines. Consequently, the firearms enhancements in the guidelines for crimes of violence and drug trafficking can be considered to take into account the fact that firearms involved in these offenses typically are semiautomatic. Moreover, the "firepower" or "dangerousness" of semiautomatic firearms, compared to other types of firearms, varies substantially with caliber and magazine capacity. For example, a .25 caliber, six-shot semiautomatic pistol is not considered as having as much firepower as a .38 caliber, six-shot revolver or a .357 magnum, six-shot revolver. A nine-millimeter semiautomatic pistol fires a somewhat more powerful cartridge than a .38 caliber revolver and a somewhat less powerful cartridge than a .357 magnum revolver. But some nine-millimeter semiautomatic pistols hold from 14-18 cartridges, compared to six cartridges for a revolver. A high magazine capacity, nine-millimeter semiautomatic pistol can be said to have significantly more firepower than a revolver because it can fire a significantly larger number of shots without reloading.

If harm actually results (e.g., death or bodily injury), the guidelines generally take that harm into account directly. Consequently, in considering any distinction between semiautomatic firearms and other firearms, the issue is whether there is any significant difference in the risk of harm. The difference in the risk of harm also varies widely with the circumstances of the offense. For example, in a robbery at very close range, the difference in the likelihood of death or bodily injury between a revolver and semiautomatic pistol would seem to be small. In contrast, in a drive-by shooting the greater firepower of a semiautomatic weapon likely would have a more significant effect on the likelihood of death or injury.

After considering the above factors, the Commission determined that the most appropriate approach at this time was to provide a specific basis for an upward departure when a high-capacity semiautomatic firearm is possessed in connection with a crime of violence or drug trafficking offense, thereby allowing the courts the flexibility to take this factor into account as appropriate in the circumstances of the particular case.

Effective Date: The effective date of this amendment is November 1, 1995.