Amendment: Chapter Two, Part A, Subpart 6 is amended in the heading by inserting "HOAXES," after "COMMUNICATIONS,".
Section 2A6.1 is amended in the heading by adding at the end "; Hoaxes".
Section 2A6.1 is amended by adding at the end the following:
(c) Cross Reference
(1) If the offense involved any conduct evidencing an intent to carry out a threat to use a weapon of mass destruction, as defined in 18 U.S.C. § 2332a(c)(2)(B), (C), and (D), apply §2M6.1 (Weapons of Mass Destruction), if the resulting offense level is greater than that determined under this guideline.".
The Commentary to §2A6.1 captioned "Statutory Provisions" is amended by inserting "1038," after "879,".
The Commentary to §2K2.1 captioned "Statutory Provisions" is amended by inserting ", 2332g" after "(k)-(o)".
Section 2L1.1(b), as amended by Amendment 692, is further amended by adding at the end the following:
"(9) If the defendant was convicted under 8 U.S.C. § 1324(a)(4), increase by 2 levels.".
The Commentary to §2M6.1 captioned "Statutory Provisions" is amended by inserting "175c," after "175b,"; by inserting "832," after "831,"; and by inserting ", 2332h" before "; 42 U.S.C.".
Appendix A (Statutory Index) is amended by inserting after the line referenced to 18 U.S.C. § 175b the following:
18 U.S.C. § 175c 2M6.1";
by inserting after the line referenced to 18 U.S.C. § 831 the following:
18 U.S.C. § 832 2M6.1";
by inserting after the line referenced to 18 U.S.C. § 1037 the following:
18 U.S.C. § 1038 2A6.1"; and
by inserting after the line referenced to 18 U.S.C. § 2332f the following:
18 U.S.C. § 2332g 2K2.1
18 U.S.C. § 2332h 2M6.1".
Reason for Amendment: This amendment implements various provisions of the Intelligence Reform and Terrorism Prevention Act of 2004 (the "Act"), Pub. L. 108–458.
Section 5401 of the Act adds a new subsection (a)(4) to 8 U.S.C. § 1324 that increases the otherwise applicable penalties by up to ten years’ imprisonment for bringing aliens into the United States if (A) the conduct is part of an ongoing commercial organization or enterprise; (B) aliens were transported in groups of 10 or more; and (C)(i) aliens were transported in a manner that endangered their lives; or (ii) the aliens presented a life-threatening health risk to people in the United States. Offenses under 18 U.S.C. § 1324 are referenced to §2L1.1 (Smuggling, Transporting, or Harboring an Unlawful Alien). In response to the new offense, the amendment adds a two-level specific offense characteristic at §2L1.1(b)(7) applicable to offenses of conviction under 8 U.S.C. § 1324(a)(4), to account for the increased statutory maximum penalty for such offenses.
Section 6702 of the Act creates a new offense at 18 U.S.C. § 1038 (False Information and Hoaxes). The amendment references the new offense to §2A6.1 (Threatening or Harassing Communications) and adds a cross reference to §2M6.1 (Unlawful Production, Development, Acquisition, Stockpiling, Alteration, Use, Transfer, or Possession of Nuclear Material, Weapons, or Facilities, Biological Agents, Toxins, or Delivery Systems, Chemical Weapons, or Other Weapons of Mass Destruction; Attempt or Conspiracy) if the conduct supports a threat to use a weapon of mass destruction. The Commission referenced the new offense to these guidelines because the conduct criminalized by the new statute is analogous to conduct already covered by other statutes referenced to these two guidelines.
Section 6803 of the Act creates a new offense at 18 U.S.C. § 832 (Participation in Nuclear and Weapons of Mass Destruction Threats in the United States), relating to participation in nuclear, and weapons of mass destruction, threats to the United States. Section 6803 also adds this new offense to the list of predicate offenses at 18 U.S.C. § 2332b(g)(5)(B)(i) and amends sections 57(b) and 92 of the Atomic Energy Act of 1954 (42 U.S.C. § 2077(b)) to cover the participation of an individual in the development of special nuclear material. The amendment references 18 U.S.C. § 832 to §2M6.1 because this offense is similar to other offenses referenced to this guideline.
Section 6903 of the Act creates a new offense at 18 U.S.C. § 2332g (Missile Systems Designed to Destroy Aircraft) prohibiting the production or transfer of missile systems designed to destroy aircraft. The amendment references 18 U.S.C. § 2332g to §2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition) because the types of weapons described in the offense would be covered as destructive devices under 26 U.S.C. § 5845(a).
Section 6905 of the Act creates a new offense at 18 U.S.C. § 2332h (Radiological Dispersal Devices) prohibiting the production, transfer, receipt, possession, or threat to use, any radiological dispersal device. The amendment references 18 U.S.C. § 2332h to §2M6.1 because of the nature of the offense. Section 2M6.1 covers conduct dealing with the production of certain types of nuclear, biological, or chemical weapons or other weapons of mass destruction, including weapons of mass destruction that, as defined in 18 U.S.C. § 2332a, are designed to release radiation or radioactivity at levels dangerous to human life.
Section 6906 of the Act creates a new offense at 18 U.S.C. § 175c (Variola Virus) that prohibits the production, acquisition, transfer, or possession of, or the threat to use, the variola virus. The amendment references the new offense to §2M6.1 because the variola virus may be used as a biological agent or toxin and, therefore, it is appropriate to reference this new offense to this guideline.
Effective Date: The effective date of this amendment is November 1, 2006.