Amendment: The Commentary to §2H1.1 captioned "Statutory Provisions" is amended by inserting "249," after "248,".
The Commentary to §2H1.1 captioned "Application Notes" is amended in Note 4 by inserting "gender identity," after "gender,".
Section 3A1.1(a) is amended by inserting "gender identity," after "gender,".
The Commentary to §3A1.1 captioned "Application Notes" is amended in Note 3 by inserting "gender identity," after "gender,"; and by adding after Note 4 the following:
"5. For purposes of this guideline, ‘gender identity’ means actual or perceived gender-related characteristics. See 18 U.S.C. § 249(c)(4).".
The Commentary to §3A1.1 captioned "Background" is amended in the first paragraph by striking the following:
"(i.e., a primary motivation for the offense was the race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of the victim)";
and by adding at the end of that paragraph the following:
"In section 4703(a) of Public Law 111–84, Congress broadened the scope of that directive to include gender identity; to reflect that congressional action, the Commission has broadened the scope of this enhancement to include gender identity.".
Appendix A (Statutory Index) is amended by inserting after the line referenced to 18 U.S.C. § 247 the following:
"18 U.S.C. § 249 2H1.1";
and by inserting after the line referenced to 18 U.S.C. § 1369 the following:
"18 U.S.C. § 1389 2A2.2, 2A2.3, 2B1.1".
Reason for Amendment: This amendment responds to the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (division E of Pub. L. 111–84) (the "Act"). The Act created two new offenses and amended a 1994 directive to the Commission regarding crimes motivated by hate.
The first new offense, 18 U.S.C. § 249 (Hate crime acts), makes it unlawful, whether or not acting under color of law, to willfully cause bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, to attempt to cause bodily injury to any person because of the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of any person. A person who violates 18 U.S.C. § 249 is subject to a term of imprisonment of up to 10 years or, if the offense includes kidnapping, aggravated sexual abuse, or an attempt to kill, or if death results from the offense, to imprisonment for any term of years or life. The amendment amends Appendix A (Statutory Index) to refer offenses under 18 U.S.C. § 249 to §2H1.1 (Offenses Involving Individual Rights) because that guideline covers similar offenses, e.g., 18 U.S.C. §§ 241 (Conspiracy against rights) and 242 (Deprivation of rights under color of law), and contains appropriate enhancements to account for aggravating circumstances that may be involved in a section 249 offense, e.g., subsection (b)(1), which provides a 6-level increase if the offense was committed under color of law.
The Act also amended section 280003 of the Violent Crime Control and Law Enforcement Act of 1994 (Pub. L. 103–322; 28 U.S.C. § 994 note), which contains a directive to the Commission regarding hate crimes. The Commission implemented that directive by promulgating subsection (a) of §3A1.1 (Hate Crime Motivation or Vulnerable Victim). See USSG App. C, Amendment 521 (effective November 1, 1995). The Act broadened the definition of "hate crime" in section 280003(a) to include crimes motivated by actual or perceived "gender identity", which has the effect of expanding the scope of the directive in section 280003(b) so that it now requires the Commission to provide an enhancement for crimes motivated by actual or perceived "gender identity". To reflect the broadened definition, the amendment amends §3A1.1 so that the enhancement in subsection (a) covers crimes motivated by actual or perceived "gender identity" and makes conforming changes to §§2H1.1. The amendment also deletes as unnecessary the parenthetical in the Background to §3A1.1, which provided an example of ཁhate crime motivationཁ.
The second new offense, 18 U.S.C. § 1389 (Prohibition on attacks on United States servicemen on account of service), makes it unlawful to knowingly assault or batter a United States serviceman or an immediate family member of a United States serviceman, or to knowingly destroy or injure the property of such serviceman or immediate family member, on the account of the military service of that serviceman or the status of that individual as a United States serviceman. A person who violates 18 U.S.C. § 1389 is subject to a term of imprisonment of not more than 2 years in the case of a simple assault, or damage of not more than $500, of not more than 5 years in the case of damage of more than $500, or of not less than 6 months nor more than 10 years in the case of a battery, or an assault resulting in bodily injury. The Commission determined that offenses under 18 U.S.C. § 1389 are similar to offenses involving assault or property damage that are already referenced to §§2A2.2 (Aggravated Assault), 2A2.3 (Minor Assault), and 2B1.1 (Theft, Property Destruction, and Fraud) and therefore amended Appendix A (Statutory Index) to refer the new offense to those guidelines.
Effective Date: The effective date of this amendment is November 1, 2010.