AMENDMENT 718

Amendment: Section 2A6.1 is amended in the heading by adding at the end "; False Liens".

Section 2A6.1(b) is amended by striking subdivision (2) as follows:

"(2) If the offense involved more than two threats, increase by 2 levels.",

and inserting the following:

"(2) If (A) the offense involved more than two threats; or (B) the defendant is convicted under 18 U.S.C. § 1521 and the offense involved more than two false liens or encumbrances, increase by 2 levels.".

The Commentary to §2A6.1 captioned "Statutory Provisions" is amended by inserting "1521," after "1038,".

The Commentary to §2A6.1 captioned "Application Notes" is amended by redesignating Notes 2 and 3 as Notes 3 and 4, respectively; and by inserting after Note 1 the following:

"2. Applicability of Chapter Three Adjustments.—If the defendant is convicted under 18 U.S.C. § 1521, apply §3A1.2 (Official Victim).".

The Commentary to §2A6.1 captioned "Application Notes" is amended in Note 4, as redesignated by this amendment, by striking subdivision (B) as follows:

"(B) Multiple Threats or Victims.—If the offense involved substantially more than two threatening communications to the same victim or a prolonged period of making harassing communications to the same victim, or if the offense involved multiple victims, an upward departure may be warranted.",

and inserting the following:

"(B) Multiple Threats, False Liens or Encumbrances, or Victims; Pecuniary Harm.—If the offense involved (i) substantially more than two threatening communications to the same victim, (ii) a prolonged period of making harassing communications to the same victim, (iii) substantially more than two false liens or encumbrances against the real or personal property of the same victim, (iv) multiple victims, or (v) substantial pecuniary harm to a victim, an upward departure may be warranted.".

Section 2H3.1(b) is amended by striking "Characteristic" and inserting "Characteristics"; and by adding at the end the following:

"(2) (Apply the greater) If—

(A) the defendant is convicted under 18 U.S.C. § 119, increase by 8 levels; or

(B) the defendant is convicted under 18 U.S.C. § 119, and the offense involved the use of a computer or an interactive computer service to make restricted personal information about a covered person publicly available, increase by 10 levels.".

The Commentary to §2H3.1 captioned "Statutory Provisions" is amended by inserting "119," before "1039,".

The Commentary to §2H3.1 captioned "Application Notes" is amended by redesignating Note 3 as Note 5 and inserting after Note 2 the following:

"3. Inapplicability of Chapter Three (Adjustments).—If the enhancement under subsection (b)(2) applies, do not apply §3A1.2 (Official Victim).

4. Definitions.—For purposes of subsection (b)(2)(B):

‘Computer’ has the meaning given that term in 18 U.S.C. § 1030(e)(1).

‘Covered person’ has the meaning given that term in 18 U.S.C. § 119(b).

‘Interactive computer service’ has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U.S.C. § 230(f)(2)).

‘Restricted personal information’ has the meaning given that term in 18 U.S.C. § 119(b).".

Appendix A (Statutory Index) is amended by inserting after the line reference to 18 U.S.C. § 115(b)(4) the following:

"18 U.S.C. § 119               2H3.1"; and

by inserting after the line reference to 18 U.S.C. § 1520 the following:

"18 U.S.C. § 1521             2A6.1".

Reason for Amendment: This amendment responds to two new offenses created by the Court Security Improvement Act of 2007 (the "Act"), Pub. L. 110–177.

First, the amendment addresses section 201 of the Act, which created a new offense at 18 U.S.C. § 1521 prohibiting the filing of, attempts, or conspiracies to file any false lien or encumbrance against the real or personal property of officers or employees of the United States Government, on account of that individual's performance of official duties. The offense is punishable by a statutory maximum term of imprisonment of ten years. The amendment references the new offense to §2A6.1 (Threatening or Harassing Communications; Hoaxes), and expands the heading of §2A6.1 accordingly. The Commission determined that referencing offenses under 18 U.S.C. § 1521 to §2A6.1 is appropriate because the harassment and threatening of an official by the filing of fraudulent encumbrances is analogous to conduct covered by other statutes referenced to this guideline.

The amendment also makes a number of modifications to §2A6.1 to address specific harms associated with violations of 18 U.S.C. § 1521. Specifically, the amendment expands the scope of the two-level enhancement at subsection (b)(2) to apply if the defendant is convicted under 18 U.S.C. § 1521 and the offense involved more than two false liens or encumbrances, and also provides an upward departure provision that may apply if the offense involved substantially more than two false liens or encumbrances against the real or personal property of the same victim. These modifications reflect the additional time and resources required to remove multiple false liens or encumbrances and provide proportionality between such offenses and other offenses referenced to this guideline that involve more than two threats.

The amendment also provides an upward departure provision that may apply if the offense involved substantial pecuniary harm to a victim. The upward departure provision reflects the increased seriousness of those offenses that result in substantial costs.

In addition, the amendment adds a new application note specifying that if the defendant is convicted under 18 U.S.C. § 1521, the adjustment under §3A1.2 (Official Victim) shall apply. The addition of this note clarifies that the official status of the victim is not taken into account in the base offense level.

Second, the amendment addresses section 202 of the Act, which created a new offense at 18 U.S.C. § 119 prohibiting the public disclosure of restricted personal information about a federal officer or employee, witness, juror, or immediate family member of such a person, with the intent to threaten or facilitate a crime of violence against such a person. The offense is punishable by a statutory maximum term of imprisonment of five years. The amendment references the new offense to §2H3.1 (Interception of Communications; Eavesdropping; Disclosure of Certain Private or Protected Information). The Commission determined that referencing offenses under 18 U.S.C. § 119 to §2H3.1 is appropriate because the prohibited conduct is analogous to conduct covered by other statutes referenced to this guideline.

The amendment also creates a two-pronged enhancement at subsection (b)(2), the greater of which applies. The first prong, at subsection (b)(2)(A), is an eight-level enhancement applicable if the defendant is convicted under 18 U.S.C. § 119. A corresponding application note provides that §3A1.2 shall not apply in such cases. Thus, the enhancement at subsection (b)(2)(A) accounts for the official victim adjustment under §3A1.2 that would otherwise apply in many offenses under 18 U.S.C. § 119. Incorporating the official victim adjustment into subsection (b)(2)(A) was appropriate because the adjustment in §3A1.2 does not apply to some individuals, such as witnesses and jurors, who are covered by 18 U.S.C. § 119. The enhancement at subsection (b)(2)(A) also reflects the intent to threaten or facilitate a crime of violence, which is an element of an offense under 18 U.S.C. § 119. The cross reference at subsection (c)(1) will apply, however, if the purpose of the offense was to facilitate another offense and the guideline applicable to an attempt to commit that other offense results in a greater offense level.

The second prong, at subsection (b)(2)(B), is a ten-level enhancement applicable if the defendant is convicted under 18 U.S.C. § 119 and the offense involved the use of a computer or an interactive computer service to make restricted personal information about a covered person publicly available. This greater enhancement accounts for the more substantial risk of harm posed by widely disseminating such protected information via the Internet.

Effective Date: The effective date of this amendment is November 1, 2008.