AMENDMENT 685
Amendment: The Commentary to §2A1.1 captioned "Statutory Provisions" is amended by inserting "1841(a)(2)(C)," after "1111,".
The Commentary to §2A1.2 captioned "Statutory Provisions" is amended by inserting "1841(a)(2)(C)," after "1111,".
The Commentary to §2A1.3 captioned "Statutory Provisions" is amended by inserting "1841(a)(2)(C)," after "1112,".
The Commentary to §2A1.4 captioned "Statutory Provisions" is amended by inserting "1841(a)(2)(C)," after "1112,".
The Commentary to §2A2.1 captioned "Statutory Provisions" is amended by inserting "1841(a)(2)(C)," after "1751(c),".
The Commentary to §2A2.2 captioned "Statutory Provisions" is amended by inserting "1841(a)(2)(C)," after "1751(e),".
Section 2B1.1(b)(6) is amended by inserting "or veterans’ memorial" after "national cemetery".
The Commentary to §2B1.1 captioned "Statutory Provisions" is amended by inserting "1369," after "1363,".
The Commentary to §2B1.1 captioned "Application Notes" is amended in Note 1 by inserting after the paragraph that begins "‘Trade secret’" the following paragraph:
"‘Veterans’ memorial’ means any structure, plaque, statue, or other monument described in 18 U.S.C. § 1369(a).".
Section 2B1.5(b)(2)(E) is amended by inserting "or veterans’ memorial" after "cemetery".
The Commentary to §2B1.5 captioned "Statutory Provisions" is amended by inserting "1369," after "1361,".
The Commentary to §2B1.5 captioned "Application Notes" is amended in Note 3 in subdivision (B) by striking "has the meaning given that term" and inserting "and ‘veterans’ memorial’ have the meaning given those terms".
The Commentary to §2N2.1 captioned "Application Notes" is amended by striking Note 3 as follows:
"3. If death or bodily injury, extreme psychological injury, property damage or monetary loss resulted, an upward departure may be warranted. See Chapter Five, Part K (Departures).",
and inserting the following:
"3. Upward Departure Provisions.—The following are circumstances in which an upward departure may be warranted:
(A) Death or bodily injury, extreme psychological injury, property damage, or monetary loss resulted. See Chapter Five, Part K (Departures).
(B) The defendant was convicted under 7 U.S.C. § 7734.".
Chapter Two, Part T, Subpart 3 is amended in the "Introductory Commentary" in the first sentence by inserting "and 3907," after "1708(b),"; in the second sentence by striking "It is not intended to deal with the importation of contraband," and inserting "It is intended to deal with some types of contraband, such as certain uncertified diamonds, but is not intended to deal with the importation of other types of contraband,"; in the last sentence by inserting "not specifically covered by this Subpart" after "stolen goods"; and by inserting "if there is not another more specific applicable guideline" after "upward".
The Commentary to §2T3.1 captioned "Statutory Provisions" is amended by inserting ", 3907" after "1708(b)".
Chapter Two, Part X, Subpart 5 is amended in the heading by inserting "FELONY" after "OTHER"; and by adding at the end "AND CLASS A MISDEMEANORS".
Section 2X5.1 is amended in the heading by inserting "Felony" after "Other".
Section 2X5.1 is amended by striking "or Class A misdemeanor"; by striking "(b)" after "18 U.S.C. § 3553"; and by adding at the end the following paragraph:
"If the defendant is convicted under 18 U.S.C. § 1841(a)(1), apply the guideline that covers the conduct the defendant is convicted of having engaged in, as that conduct is described in 18 U.S.C. § 1841(a)(1) and listed in 18 U.S.C. § 1841(b).".
The Commentary the §2X5.1 is amended by inserting before "Application Note:" the following:
"Statutory Provision: 18 U.S.C. § 1841(a)(1).".
The Commentary the §2X5.1 captioned "Application Note" is amended by striking "Note" and inserting "Notes"; in Note 1 by inserting "In General.—" before "Guidelines"; and by adding at the end the following:
"2. Convictions under 18 U.S.C. § 1841(a)(1).—
(A) In General.—If the defendant is convicted under 18 U.S.C. § 1841(a)(1), the Chapter Two offense guideline that applies is the guideline that covers the conduct the defendant is convicted of having engaged in, i.e., the conduct of which the defendant is convicted that violates a specific provision listed in 18 U.S.C. § 1841(b) and that results in the death of, or bodily injury to, a child in utero at the time of the offense of conviction. For example, if the defendant committed aggravated sexual abuse against the unborn child’s mother and it caused the death of the child in utero, the applicable Chapter Two guideline would be §2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse).
(B) Upward Departure Provision.—For offenses under 18 U.S.C. § 1841(a)(1), an upward departure may be warranted if the offense level under the applicable guideline does not adequately account for the death of, or serious bodily injury to, the child in utero.
3. Application of §2X5.2.—This guideline applies only to felony offenses not referenced in Appendix A (Statutory Index). For Class A misdemeanor offenses that have not been referenced in Appendix A, apply §2X5.2 (Class A Misdemeanors (Not Covered by Another Specific Offense Guideline)).".
The Commentary to §2X5.1 captioned "Background" is amended in the first paragraph by striking the following:
"Where there is no sufficiently analogous guideline, the provisions of 18 U.S.C. § 3553(b) control. That statute provides in relevant part as follows: ‘In the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in [18 U.S.C. § 3553] subsection (a)(2). In the absence of an applicable sentencing guideline in the case of an offense other than a petty offense, the court shall also have due regard for the relationship of the sentence imposed to sentences prescribed by guidelines applicable to similar offenses and offenders, and to the applicable policy statements of the Sentencing Commission.’",
and inserting the following:
"In a case in which there is no sufficiently analogous guideline, the provisions of 18 U.S.C. § 3553 control.".
Chapter Two, Part X, Subpart 5 is amended by adding at the end the following:
"§2X5.2. Class A Misdemeanors (Not Covered by Another Specific Offense Guideline)
(a) Base Offense Level: 6
1. In General.—This guideline applies to Class A misdemeanor offenses that are specifically referenced in Appendix A (Statutory Index) to this guideline. This guideline also applies to Class A misdemeanor offenses that have not been referenced in Appendix A. Do not apply this guideline to a Class A misdemeanor that has been specifically referenced in Appendix A to another Chapter Two guideline.".
Appendix A (Statutory Index) is amended by inserting after the line referenced to 7 U.S.C. § 2024(c) the following:
"7 U.S.C. § 2156 2X5.2";
by inserting after the line referenced to 18 U.S.C. § 1121 the following:
"18 U.S.C. § 1129(a) 2X5.2";
by inserting after the line referenced to 18 U.S.C. § 1365(e) the following:
"18 U.S.C. § 1365(f) 2X5.2";
by inserting after the line referenced to 18 U.S.C. § 1366 the following:
"18 U.S.C. § 1369 2B1.1, 2B1.5";
by inserting after the line referenced to 18 U.S.C. § 1792 the following:
"18 U.S.C. § 1801 2X5.2";
by inserting after the line referenced to 18 U.S.C. § 1832 the following:
"18 U.S.C. § 1841(a)(1) 2X5.1
18 U.S.C. § 1841(a)(2)(C) 2A1.1, 2A1.2, 2A1.3, 2A1.4, 2A2.1, 2A2.2";
by inserting after the line referenced to 19 U.S.C. § 2401f the following:
"19 U.S.C. § 3907 2T3.1"; and
by inserting after the line referenced to 19 U.S.C. § 2401f the following:
"42 U.S.C. § 14133 2X5.2".
Reason for Amendment: This five-part amendment makes several additions to various guideline provisions in response to recently-enacted legislation, and creates a new guideline at §2X5.2 to cover certain Class A misdemeanors.
First, this amendment responds to section 2 of the Veterans’ Memorial Preservation and Recognition Act of 2003, Pub. L. 108–29. This Act created a new offense at 18 U.S.C. § 1369 that prohibits the destruction of veterans’ memorials and imposes a ten-year statutory maximum term of imprisonment. This amendment refers this new offense to both §§2B1.1 (Theft, Property Destruction, and Fraud) and 2B1.5 (Theft of, Damage to, or Destruction of, Cultural Heritage Resources), and broadens the application of the two-level enhancement under both §§2B1.1(b)(6) and 2B1.5(b)(2) to include veterans’ memorials. The two-level enhancement at §2B1.1(b)(6), combined with the cross reference at §2B1.1(c)(4), ensures that the penalty for the destruction of veterans’ memorials will reflect the status of a veterans’ memorial as a specially protected cultural heritage resource.
Second, this amendment addresses the Plant Protection Act of 2002, Pub. L. 107–171, which created a new offense under 7 U.S.C. § 7734 for knowingly importing or exporting plants, plant products, biological control organisms, and like products for distribution or sale. The statutory maximum term of imprisonment for the first offense is five years, and for subsequent offenses the statutory maximum term of imprisonment is ten years. This amendment modifies Application Note 3 of §2N2.1 (Violations of Statutes and Regulations Dealing with Any Food, Drug, Biological Product, Device, Cosmetic, or Agricultural Product) to provide that an upward departure may be warranted if a defendant is convicted under 7 U.S.C. § 7734.
Third, this amendment addresses the Clean Diamond Trade Act of 2003, Pub. L. 108–19, and accompanying Executive Order 13312, which prohibits (1) "the importation into, or exportation from, the United States . . . of any rough diamond, from whatever source, unless the rough diamond has been controlled through the [Kimberley Process Certification Scheme]; and (2) any transaction by a United States person anywhere, or any transaction that occurs in whole or in part within the United States, that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in this section," and conspiracies to commit such acts. This amendment references the new offense at 19 U.S.C. § 3907 to §2T3.1 (Evading Import Duties or Restrictions (Smuggling); Receiving or Trafficking in Smuggled Property) because the offense involves importing into the United States "conflict" diamonds (so-called because the profits from their sale are frequently used to fund rebel and military activities) without proper certification or payment of duty fees according to the Kimberley Process Certification Scheme, a process that legitimizes the quality and original source of the diamond. Because the essence of this new statutory offense is to avoid proper certification and evade duty fees, penalties for its violation are appropriately covered by §2T3.1. This amendment also adds language referencing "contraband diamonds" to the introductory commentary of Chapter Two, Part T, Subpart Three to indicate that uncertified diamonds are contraband covered by §2T3.1 even if other types of contraband are covered by other, more specific guidelines.
Fourth, this amendment implements the Unborn Victims of Violence Act of 2004, Pub. L. 108–212, which created a new offense at 18 U.S.C. § 1841 for causing death or serious bodily injury to a child in utero while engaging in conduct violative of any of over 60 offenses enumerated at 18 U.S.C. § 1841(b). Under 18 U.S.C. § 1841(a)(1) and (a)(2)(A), the statutory maximum term of imprisonment for the conduct that “caused the death of, or bodily injury to a child in utero shall be the penalty provided under Federal law for that conduct had that injury or death occurred to the unborn child’s mother.” Otherwise, under 18 U.S.C. § 1841(a)(2)(C), if the person “engaging in the conduct . . . intentionally kills or attempts to kill the unborn child, that person shall be punished . . . under sections 1111, 1112, and 1113 for intentionally killing or attempting to kill a human being.” The amendment references 18 U.S.C. § 1841(a)(2)(C) to the guidelines designated in Appendix A for 18 U.S.C. §§ 1111, 1112, and 1113, which are §§2A1.1 (First Degree Murder), 2A1.2 (Second Degree Murder), 2A1.3 (Voluntary Manslaughter), and 2A1.4 (Involuntary Manslaughter). This amendment also refers the provisions under 18 U.S.C. § 1841(a)(1) and (a)(2)(A) to 2X5.1 (Other Offenses) and adds a special instruction that the most analogous guideline for these offenses is the guideline that covers the underlying offenses.
Fifth, this amendment creates a new guideline at §2X5.2 (Class A Misdemeanors) that covers all Class A misdemeanors not otherwise referenced to a more specific Chapter Two guideline. The amendment assigns a base offense level of 6 for such offenses, consistent with the guidelines’ treatment of many Class A misdemeanor and regulatory offenses. The amendment also references several new Class A Misdemeanors to this guideline. With the promulgation of this new guideline, the Commission will reference new Class A Misdemeanor offenses either to this guideline or to another, more specific Chapter Two guideline, as appropriate.
Effective Date: The effective date of this amendment is November 1, 2006.