54


AMENDMENT 54

Amendment: Section 5E4.2 is amended by deleting:

"(b) The generally applicable minimum and maximum fine for each offense level is shown in the Fine Table in subsection (c) below. Unless a statute expressly authorizes a greater amount, no fine may exceed $250,000 for a felony or a misdemeanor resulting in the loss of human life; $25,000 for any other misdemeanor; or $1,000 for an infraction. 18 U.S.C. § 3571(b)(1).

(c) (1) The minimum fine range is the greater of:

(A) the amount shown in column A of the table below; or

(B) any monetary gain to the defendant, less any restitution made or ordered.

(2) Except as specified in (4) below, the maximum fine is the greater of:

(A) the amount shown in column B of the table below;

(B) twice the estimated loss caused by the offense; or

(C) three times the estimated gain to the defendant.",

and inserting in lieu thereof:

"(b) Except as provided in subsections (f) and (i) below, or otherwise required by statute, the fine imposed shall be within the range specified in subsection (c) below.

(c) (1) The minimum of the fine range is the greater of:

(A) the amount shown in column A of the table below; or

(B) the pecuniary gain to the defendant, less restitution made or ordered.

(2) Except as specified in (4) below, the maximum of the fine range is the greater of:

(A) the amount shown in column B of the table below;

(B) twice the gross pecuniary loss caused by the offense; or

(C) three times the gross pecuniary gain to all participants in the offense.".

The Commentary to §5E4.2 captioned "Application Notes" is amended by deleting:

"2. The maximum fines generally authorized by statute are restated in subsection (b). These apply to each count of conviction. Ordinarily, the maximum fines on each count are independent and cumulative. However, if the offenses ‘arise from a common scheme or plan’ and ‘do not cause separable or distinguishable kinds of harm or damage,’ the aggregate fine may not exceed ‘twice the amount imposable for the most serious offense.’ 18 U.S.C. § 3572(b) (former 18 U.S.C. § 3623(c)(2)).

3. Alternative fine limits are provided in subsection (c)(2). The term ‘estimated gain’ is used to emphasize that the Commission does not intend precise or detailed calculation of the monetary gain (nor of the loss) in using the alternative fine limits. In many cases, circumstances will make it unnecessary to consider these standards other than in the most general terms.",

and inserting in lieu thereof:

"2. In general, the maximum fine permitted by law as to each count of conviction is $250,000 for a felony or for any misdemeanor resulting in death; $100,000 for a Class A misdemeanor; and $5,000 for any other offense. 18 U.S.C. § 3571(b)(3)-(7). However, higher or lower limits may apply when specified by statute. 18 U.S.C. § 3571(b)(1), (e). As an alternative maximum, the court may fine the defendant up to the greater of twice the gross gain or twice the gross loss. 18 U.S.C. § 3571(b)(2), (d).

3. Alternative fine limits are provided in subsection (c). The terms ‘pecuniary gain’ and ‘pecuniary loss’ are taken from 18 U.S.C. § 3571(d). The Commission does not intend precise or detailed calculation of the gain or loss in using the alternative fine limits. In many cases, circumstances will make it unnecessary to consider these standards other than in the most general terms.".

The Commentary to §5E4.2 captioned "Application Notes" is amended in Note 4 by deleting "Any restitution" and inserting in lieu thereof "Restitution".

The Commentary to §5E4.2 captioned "Background" is amended by deleting:

"defendant. In addition, the Commission concluded that greater latitude with a gain-based fine was justified; when the court finds it necessary to rely on the gain, rather than the loss, to set the fine, ordering restitution usually will not be feasible because of the difficulty in computing the amount.",

and inserting in lieu thereof:

"participants. In addition, in many such cases restitution will not be feasible.".

Reason for Amendment: The purposes of this amendment are to make the guideline consistent with 18 U.S.C. § 3571, as amended, to clarify the commentary, and to correct clerical errors in the guideline and commentary.

Effective Date: The effective date of this amendment is January 15, 1988.