Amendment: Section 3A1.1(a) is amended by inserting "of conviction" after "the offense".

The Commentary to §3A1.1 captioned "Application Notes" is amended in Note 2 by inserting at the beginning the following new paragaph:

"For purposes of subsection (b), ‘victim’ includes any person who is a victim of the offense of conviction and any conduct for which the defendant is accountable under §1B1.3 (Relevant Conduct).".

Reason for Amendment: This amendment addresses a circuit court conflict regarding whether "victim of the offense" in §3A1.1 (Hate Crime Motivation or Vulnerable Victim) refers only to a victim of the defendant’s offense of conviction or, more broadly, to a victim of any relevant conduct. The amendment adopts the majority appellate view, which holds that a sentencing court should consider the defendant’s relevant conduct when determining whether the vulnerable victim enhancement applies. See, e.g., United States v. Haggard, 41 F.3d 1320, 1326 (9th Cir. 1994) (proper to consider harm caused to victims beyond the defendant’s offense of conviction); United States v. Yount, 960 F.2d 955 (11th Cir. 1992).

This amendment also clarifies a possible ambiguity regarding the scope of conduct to be considered when applying the hate crime motivation enhancement in §3A1.1(a). Consistent with Congress’s intent to punish a defendant whose primary objective in committing the hate crime was to harm a member of a particular class of individuals, this amendment clarifies that the enhancement in subsection (a) is limited to victims of the defendant’s offense of conviction.

Effective Date: The effective date of this amendment is November 1, 1997.