Amendment: Section 2B5.1(b)(2)(B) is amended by inserting "(ii) genuine United States currency paper from which the ink or other distinctive counterfeit deterrent has been completely or partially removed;" after "paper;"; and by striking "or (ii)" and inserting "or (iii)".
The Commentary to §2B5.1 captioned "Application Notes" is amended in Note 1 by inserting after the paragraph that begins "Definitions.—" the following:
"‘Counterfeit’ refers to an instrument that has been falsely made, manufactured, or altered. For example, an instrument that has been falsely made or manufactured in its entirety is ‘counterfeit’, as is a genuine instrument that has been falsely altered (such as a genuine $5 bill that has been altered to appear to be a genuine $100 bill).".
The Commentary to §2B5.1 captioned "Application Notes" is amended by striking Note 3 as follows:
"3. Inapplicability to Genuine but Fraudulently Altered Instruments.—‘Counterfeit,’ as used in this section, means an instrument that purports to be genuine but is not, because it has been falsely made or manufactured in its entirety. Offenses involving genuine instruments that have been altered are covered under §2B1.1 (Theft, Property Destruction, and Fraud).";
and by redesignating Note 4 as Note 3.
Appendix A (Statutory Index) is amended in the line referenced to 18 U.S.C. § 474A by striking "2B1.1,"; and in the line referenced to 18 U.S.C. § 476 by striking "2B1.1,".
Reason for Amendment: This amendment amends §2B5.1 (Offenses Involving Counterfeit Bearer Obligations of the United States) to clarify guideline application issues regarding the sentencing of counterfeiting offenses involving "bleached notes." A bleached note is genuine United States currency stripped of its original image through the use of solvents or other chemicals and then reprinted to appear to be a note of higher denomination. The amendment responds to concerns expressed by federal judges and members of Congress regarding which guideline should apply to offenses involving bleached notes.
Courts in different circuits have resolved differently the question of whether an offense involving bleached notes should be sentenced under §2B5.1 or §2B1.1 (Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving Stolen Property; Property Damage or Destruction; Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States). Compare United States v. Schreckengost, 384 F.3d 922 (7th Cir. 2004) (holding that bleached notes should be sentenced under §2B1.1), and United States v. Inclema, 363 F.3d 1177 (11th Cir. 2004) (same), with United States v. Dison, 2008 WL 351935 (W.D. La. Feb. 8, 2008) (applying §2B5.1 in a case involving bleached notes), and United States v. Vice, 2008 WL 113970 (W.D. La. Jan. 3, 2008) (same).
The amendment resolves this issue by providing that an offense involving bleached notes is sentenced under §2B5.1. The amendment does so by deleting Application Note 3 and revising the definition of "counterfeit" to more closely parallel relevant counterfeiting statutes, including 18 U.S.C. §§ 471 (Obligations or securities of the United States) and 472 (Uttering counterfeit obligations or securities). It establishes a new definition at Application Note 1 providing that counterfeit "refers to an instrument that has been falsely made, manufactured, or altered." Under the new definition, altered instruments are treated as counterfeit and sentenced under §2B5.1. Technological advances in counterfeiting, such as bleaching notes, have rendered obsolete the previous distinction in the guidelines between an instrument falsely made or manufactured in its entirety and a genuine instrument that is altered.
The amendment also adds a prong to the enhancement at subsection (b)(2)(B) to cover a case in which the defendant controlled or possessed genuine United States currency paper from which the ink or other distinctive counterfeit deterrent has been completely or partially removed. Blank or partially blank bleached notes are similar to counterfeiting paper in how they are involved in counterfeiting offenses. Accordingly, this new prong ensures that an offender who controlled or possessed blank or partially blank bleached notes is subject to the same two-level enhancement as an offender who controlled or possessed "counterfeiting paper similar to a distinctive paper", as subsection (b)(2)(B)(i) already provides.
Finally, the amendment amends Appendix A (Statutory Index) by striking the reference to §2B1.1 for two offenses that do not involve elements of fraud. Specifically, the amendment deletes the reference to §2B1.1 for offenses under 18 U.S.C. §§ 474A (Deterrents to counterfeiting of obligations and securities) and 476 (Taking impressions of tools used for obligations or securities).
Effective Date: The effective date of this amendment is November 1, 2009.