AMENDMENT 728

Amendment: Section 2D1.1(b)(2) is amended by striking "or" before "(B)"; and by inserting "a submersible vessel or semi-submersible vessel as described in 18 U.S.C. § 2285 was used, or (C)" after "(B)".

The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 8 in the paragraph that begins "Note, however" by striking "(B)" and inserting "(C)".

Chapter Two, Part X, Subpart 7 is amended in the heading by adding at the end "AND SUBMERSIBLE AND SEMI-SUBMERSIBLE VESSELS".

Chapter Two, Part X, Subpart 7 is amended by adding at the end the following guideline and accompanying commentary:

"§2X7.2. Submersible and Semi-Submersible Vessels

(a) Base Offense Level: 26

(b) Specific Offense Characteristic

(1) (Apply the greatest) If the offense involved—

(A) a failure to heave to when directed by law enforcement officers, increase by 2 levels;

(B) an attempt to sink the vessel, increase by 4 levels; or

(C) the sinking of the vessel, increase by 8 levels.

Commentary

Statutory Provision: 18 U.S.C. § 2285.

Application Note:

1. Upward Departure Provisions.—An upward departure may be warranted in any of the following cases:

(A) The defendant engaged in a pattern of activity involving use of a submersible vessel or semi-submersible vessel described in 18 U.S.C. § 2285 to facilitate other felonies.

(B) The offense involved use of the vessel as part of an ongoing criminal organization or enterprise.

Background: This guideline implements the directive to the Commission in section 103 of Public Law 110–407.".

Appendix A (Statutory Index) is amended by inserting after the line referenced to 18 U.S.C. § 2284 the following:

"18 U.S.C. § 2285               2X7.2".

Reason for Amendment: This amendment responds to the Drug Trafficking Vessel Interdiction Act of 2008, Pub. L. 110–407 (the "Act"). The Act created a new offense at 18 U.S.C. § 2285 making it unlawful to operate, attempt or conspire to operate, or embark in an unflagged submersible or semi-submersible vessel in international waters with the intent to evade detection. Section 103 of the Act directed the Commission to amend the guidelines, or promulgate new guidelines, to provide adequate penalties for persons convicted of offenses under 18 U.S.C. § 2285 and included a list of circumstances for the Commission to consider.

First, the amendment amends §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) by expanding the scope of the specific offense characteristic at subsection (b)(2) to apply if a submersible or semi-submersible vessel was used in a drug importation offense. The Commission determined that a drug importation offense involving the use of a submersible or semi-submersible vessel poses similar risks and harms as a drug importation offense involving an unscheduled aircraft (which subsection (b)(2) already covers). The amendment also makes a conforming change to a reference in Application Note 8.

Second, the amendment creates a new guideline at §2X7.2 (Submersible and Semi-Submersible Vessels) for the new offense at 18 U.S.C. § 2285. The new guideline provides a base offense level of 26 and includes a tiered specific offense characteristic and upward departure provisions to address certain aggravating circumstances listed in the directive. Public testimony indicates that submersible and semi-submersible vessels to date have been used for the purpose of transporting drugs. Such conduct receives a minimum offense level of 26 under §2D1.1(b)(2), discussed above, regardless of the type or quantity of drug involved in the offense. The Commission determined that a base offense level of 26 in §2X7.2 for an offense under section 2285 would be appropriate to promote proportionality.

The specific offense characteristic in §2X7.2 provides a two-level enhancement for failing to heave to, a four-level enhancement for attempting to sink the vessel, and an eight-level enhancement for sinking the vessel; the greatest applicable enhancement applies. Offenses involving such conduct are more serious because they create greater risk of harm to the crew of the illegal vessel and the interdicting law enforcement personnel, particularly in a case in which the illegal vessel is sunk and its crew must be rescued. In addition, sinking the vessel destroys evidence of illegal activity. The upward departure provisions provide that an upward departure may be warranted if the defendant engaged in a pattern of activity involving the use of a submersible or semi-submersible vessel, or if the offense involved the use of the vessel as a part of an ongoing criminal organization or criminal enterprise.

Third, the amendment amends Appendix A (Statutory Index) to reference 18 U.S.C. § 2285 to §2X7.2.

Effective Date: The effective date of this amendment is November 1, 2009.