AMENDMENT 721
Amendment: Section 2E3.1 is amended in the heading by adding at the end "; Animal Fighting Offenses".
Section 2E3.1(a) is amended by inserting "(Apply the greatest)" after "Level:"; by redesignating subdivision (2) as subdivision (3); and by inserting after subdivision (1) the following:
"(2) 10, if the offense involved an animal fighting venture; or".
The Commentary to §2E3.1 captioned "Statutory Provisions" is amended by inserting "7 U.S.C. § 2156;" before "15 U.S.C. §§".
The Commentary to §2E3.1 is amended by adding at the end the following:
"Application Notes:
1. Definition.—For purposes of this guideline: ‘Animal fighting venture’ has the meaning given that term in 7 U.S.C. § 2156(g).
2. Upward Departure Provision.—If the offense involved extraordinary cruelty to an animal that resulted in, for example, maiming or death to an animal, an upward departure may be warranted.".
The Commentary to §2X5.2 captioned "Statutory Provisions" is amended by striking "7 U.S.C. § 2156;".
Appendix A (Statutory Index) is amended in the line reference to 7 U.S.C. § 2156 by striking "2X5.2" and inserting "2E3.1".
Reason for Amendment: This amendment implements the Animal Fighting Prohibition Enforcement Act of 2007, Pub. L. 110–22 (the "Act"). The Act amended the Animal Welfare Act, 7 U.S.C. § 2156, to increase penalties for existing offenses and to create a new offense. Specifically, the Act increased penalties for criminal violations of 7 U.S.C. § 2156 from a one-year statutory maximum term of imprisonment to a three-year statutory maximum term of imprisonment. The penalties are set forth in section 49 of title 18, United States Code. In addition, the Act created an offense at 7 U.S.C. § 2156(e) making it unlawful to "sell, buy, transport, or deliver in interstate or foreign commerce a knife, a gaff, or any other sharp instrument attached, or designed or intended to be attached, to the leg of a bird for use in an animal fighting venture." This new offense also carries a three-year statutory maximum term of imprisonment.
Because 7 U.S.C. § 2156 is now a felony offense, the amendment deletes the reference of 7 U.S.C. § 2156 to §2X5.2 (Class A Misdemeanors) in Appendix A (Statutory Index), and deletes the listing of 7 U.S.C. § 2156 from the statutory provisions listed in the commentary to §2X5.2. The amendment references offenses under 7 U.S.C. § 2156 to §2E3.1 (Gambling Offenses) as the legislative history and public comment indicate that such offenses often involve gambling. Accordingly, the amendment expands the title of §2E3.1 to include animal fighting offenses.
The amendment also creates a new alternative base offense level at §2E3.1(a)(2) that provides a base offense level of level 10 if the offense involved an "animal fighting venture," which is defined in Application Note 1 as having the meaning given that term in 7 U.S.C. § 2156(g), i.e., "any event which involves a fight between at least two animals and is conducted for purposes of sport, wagering, or entertainment." The alternative base offense level reflects the increased harm, i.e., cruelty to animals, resulting from offenses under 7 U.S.C. § 2156(g) that is not associated with offenses that typically receive a base offense level of level 6 under the guideline. Additionally, the amendment adds an instruction to apply the greatest applicable base offense level at §2E3.1(a) because an offense involving an animal fighting venture may also involve conduct covered by subsection (a)(1) and, therefore, should receive the higher base offense level provided by that subsection.
The amendment also provides an upward departure provision that may apply if an offense involves extraordinary cruelty to an animal that resulted in, for example, maiming or death to an animal.
Effective Date: The effective date of this amendment is November 1, 2008.