AMENDMENT 669
Amendment: Section 2K2.1(b) is amended by striking subdivision (3) as follows:
"(3) If the offense involved a destructive device, increase by 2 levels.",
and inserting the following:
"(3) If the offense involved—
(A) a destructive device that is a portable rocket, a missile, or a device for use in launching a portable rocket or a missile, increase by 15 levels; or
(B) a destructive device other than a destructive device referred to in subdivision (A), increase by 2 levels.".
Section 2K2.1(b) is amended by striking:
"Provided, that the cumulative offense level determined above shall not exceed level 29.",
and inserting the following:
"The cumulative offense level determined from the application of subsections (b)(1) through (b)(4) may not exceed level 29, except if subsection (b)(3)(A) applies.".
The Commentary to §2K2.1 captioned "Application Notes" is amended by striking Notes 1 through 4 as follows:
"1. ‘Firearm’ includes (i) any weapon (including a starter gun) which will, or is designed to, or may readily be converted to, expel a projectile by the action of an explosive; (ii) the frame or receiver of any such weapon; (iii) any firearm muffler or silencer; or (iv) any destructive device. See 18 U.S.C. § 921(a)(3).
2. ‘Ammunition’ includes ammunition or cartridge cases, primer, bullets, or propellent powder designed for use in any firearm. See 18 U.S.C. § 921(a)(17)(A).
3. A ‘firearm described in 26 U.S.C. § 5845(a)’ includes: (i) a shotgun having a barrel or barrels of less than 18 inches in length; a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length; a rifle having a barrel or barrels of less than 16 inches in length; or a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length; (ii) a machinegun; (iii) a silencer; (iv) a destructive device; and (v) certain unusual weapons defined in 26 U.S.C. § 5845(e) (that are not conventional, unaltered handguns, rifles, or shotguns). For a more detailed definition, refer to 26 U.S.C. § 5845.
A ‘firearm described in 18 U.S.C. § 921(a)(30)’ (pertaining to semiautomatic assault weapons) does not include a weapon exempted under the provisions of 18 U.S.C. § 922(v)(3).
4. ‘Destructive device’ is a type of firearm listed in 26 U.S.C. § 5845(a), and includes any explosive, incendiary, or poison gas -- (i) bomb, (ii) grenade, (iii) rocket having a propellant charge of more than four ounces, (iv) missile having an explosive or incendiary charge of more than one-quarter ounce, (v) mine, or (vi) device similar to any of the devices described in the preceding clauses; any type of weapon which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, and which has any barrel with a bore of more than one-half inch in diameter; or any combination of parts either designed or intended for use in converting any device into any destructive device listed above. For a more detailed definition, refer to 26 U.S.C. § 5845(f).",
and by redesignating Note 5 as Note 1.
The Commentary to §2K2.1 captioned "Application Notes" is amended in Note 1, as redesignated by this amendment, by inserting "Definitions.—" before "For purposes of this guideline:"; by inserting before "‘Controlled substance offense’" the following paragraph:
"‘Ammunition’ has the meaning given that term in 18 U.S.C. § 921(a)(17)(A).";
by inserting after the paragraph that begins "‘Crime of violence’" the following paragraph:
"‘Destructive device’ has the meaning given that term in 26 U.S.C. § 5845(f).";
and by adding at the end the following paragraph:
"‘Firearm’ has the meaning given that term in 18 U.S.C. § 921(a)(3).".
The Commentary to §2K2.1 captioned "Application Notes" is amended by inserting after Note 1, as redesignated by this amendment, the following:
"2. Firearm Described in 18 U.S.C. § 921(a)(30).—For purposes of subsection (a), a ‘firearm described in 18 U.S.C. § 921(a)(30)’ (pertaining to semiautomatic assault weapons) does not include a weapon exempted under the provisions of 18 U.S.C. § 922(v)(3).".
The Commentary to §2K2.1 captioned "Application Notes" is amended by redesignating Notes 6 through 19 as Notes 3 through 16, respectively.
The Commentary to §2K2.1 captioned "Application Notes" is amended in Note 8, as redesignated by this amendment, by striking "a two-level" and inserting "the applicable"; and by adding at the end the following paragraph:
"Offenses involving such devices cover a wide range of offense conduct and involve different degrees of risk to the public welfare depending on the type of destructive device involved and the location or manner in which that destructive device was possessed or transported. For example, a pipe bomb in a populated train station creates a substantially greater risk to the public welfare, and a substantially greater risk of death or serious bodily injury, than an incendiary device in an isolated area. In a case in which the cumulative result of the increased base offense level and the enhancement under subsection (b)(3) does not adequately capture the seriousness of the offense because of the type of destructive device involved, the risk to the public welfare, or the risk of death or serious bodily injury that the destructive device created, an upward departure may be warranted. See also §§5K2.1 (Death), 5K2.2 (Physical Injury), and 5K2.14 (Public Welfare).".
The Commentary to §2K2.1 captioned "Application Notes" is amended in Note 13, as redesignated by this amendment, by inserting "(see Application Note 8)" after "multiple individuals".
Section 2X1.1 is amended by striking subsection (d) as follows:
"(d) Special Instruction
(1) Subsection (b) shall not apply to any of the following offenses, if such offense involved, or was intended to promote, a federal crime of terrorism as defined in 18 U.S.C. § 2332b(g)(5):
18 U.S.C. § 81;
18 U.S.C. § 930(c);
18 U.S.C. § 1362;
18 U.S.C. § 1363;
18 U.S.C. § 1992;
18 U.S.C. § 2339A;
18 U.S.C. § 2340A;
49 U.S.C. § 46504;
49 U.S.C. § 46505; and
49 U.S.C. § 60123(b).",
and inserting the following:
"(d) Special Instruction
(1) Subsection (b) shall not apply to:
(A) Any of the following offenses, if such offense involved, or was intended to promote, a federal crime of terrorism as defined in 18 U.S.C. § 2332b(g)(5):
18 U.S.C. § 81;
18 U.S.C. § 930(c);
18 U.S.C. § 1362;
18 U.S.C. § 1363;
18 U.S.C. § 1992;
18 U.S.C. § 2339A;
18 U.S.C. § 2340A;
49 U.S.C. § 46504;
49 U.S.C. § 46505; and
49 U.S.C. § 60123(b).
(B) Any of the following offenses:
18 U.S.C. § 32;
18 U.S.C. § 1993; and
18 U.S.C. § 2332a.".
Appendix A (Statutory Index) is amended in the line referenced to 18 U.S.C. § 1993(a)(8) by inserting "2A5.2 (if attempt or conspiracy to commit 18 U.S.C. § 1993(a)(4), (a)(5), or (a)(6))," before "2A6.1".
Reason for Amendment: Before promulgation of this amendment, subsection (b)(3) of §2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition) generally provided a two-level enhancement if the offense involved a destructive device, without regard to the type of destructive device involved. This amendment increases that enhancement to 15 levels if the destructive device was a man-portable air defense system (MANPADS), portable rocket, missile, or device used for launching a portable rocket or missile. It maintains the two-level enhancement for all other destructive devices. MANPADS and similar weapons are highly regulated under chapter 53 of title 26, United States Code, and chapter 44 of title 18, United States Code, and are classified as "destructive devices" under 26 U.S.C. § 5845(f).
This amendment responds to concerns that these types of weapons, which have been used overseas, have the ability to inflict death or injury on large numbers of persons if fired at an aircraft, train, building, or similar target. Because of the inherent risks of such weapons and the fact that there is no legitimate reason to possess them, the Commission determined that the statutory maximum penalty for possession of such devices should apply in all such offenses, even after possible application of acceptance of responsibility. The amendment also re-designates Application Note 11 as Application Note 8, and adds an invited upward departure for non-MANPADS destructive devices in a case in which the two-level enhancement for such devices does not adequately capture the seriousness of the offense because of the type of destructive device involved, the risk to public welfare, and the risk of death or serious bodily injury that the destructive device created. Furthermore, in response to concerns that it is unclear whether certain types of firearms qualify as "destructive devices" using the guideline definition of "destructive device," the amendment adopts the statutory definition provided in 26 U.S.C. § 5845(f). For consistency, similar statutory definitions are substituted for the definitions of "ammunition" and "firearm."
The amendment also increases guideline penalties for attempts and conspiracies to commit certain offenses if those offenses involved the use of a MANPADS or similar destructive device. Affected offenses include 18 U.S.C. § 32 (Destruction of aircraft or aircraft facilities), 18 U.S.C. § 1993 (Terrorist attacks and other acts of violence against mass transportation systems), and 18 U.S.C. § 2332a (Use of certain weapons of mass destruction). The Commission amended the special instruction in subsection (d) of §2X1.1 (Attempt, Solicitation, or Conspiracy (Not Covered by a Specific Offense Guideline)) to prohibit application of the three-level reduction for attempts and conspiracies for these offenses generally, and not just in the context of the use of a MANPADS or similar destructive device.
Finally, the amendment modifies the Statutory Index (Appendix A) reference for convictions under 18 U.S.C. § 1993(a)(8), relating to attempts, threats, or conspiracies to commit any of the substantive terrorist offenses in 18 U.S.C. § 1993(a). Under this amendment, these offenses will be referred to §2A5.2 (Interference with Flight Crew Member or Flight Attendant; Interference with Dispatch, Operation, or Maintenance of Mass Transportation Vehicle or Ferry) rather than §2A6.1 (Threatening or Harassing Communications).
Effective Date: The effective date of this amendment is November 1, 2004.