AMENDMENT 746
Amendment: The Commentary to §1B1.3 captioned "Application Notes" is amended in Note 2 in the second paragraph by striking "(i)" and inserting "(A)"; and by striking "(ii)" and inserting "(B)"; in Note 6, in the first paragraph by striking "‘is" and inserting "‘was"; and by striking "was committed by the means set forth in" and inserting "involved conduct described in".
The Commentary to §1B1.8 captioned "Application Notes" is amended in Note 2 by striking "Probation Service" and inserting "probation office".
The Commentary to §1B1.9 captioned "Application Notes" is amended in Note 1 by inserting "or for which no imprisonment is authorized. See 18 U.S.C. § 3559" after "not more than five days".
The Commentary to §1B1.11 captioned "Application Notes" is amended in Note 2 by striking "Guideline" and inserting "Guidelines".
The Commentary to §1B1.13 captioned "Application Notes" is amended in Note 1 by striking "Subsection" and inserting "Subdivision".
The Commentary to §2A1.1 captioned "Application Notes" is amended in Note 1 by inserting ", see §2A4.1(c)(1)" after "occurs"; and by inserting ", see §2E1.3(a)(2)" after "racketeering".
The Commentary to §2A3.2 captioned "Application Notes" is amended in Note 5 by striking "kidnaping" and inserting "kidnapping" each place it appears.
The Commentary to §2A3.3 captioned "Application Notes" is amended in Note 1 by inserting "years" before "; (B)".
The Commentary to §2A3.5 captioned "Application Notes" is amended in Note 1 by striking "those terms in 42 U.S.C. § 16911(2), (3) and (4), respectively" and inserting "the terms ‘tier I sex offender’, ‘tier II sex offender’, and ‘tier III sex offender’, respectively, in 42 U.S.C. § 16911".
The Commentary to §2B1.4 captioned "Application Notes" is amended in Note 1 by striking "Subsection of".
The Commentary to §2B1.5 captioned "Application Notes" is amended in Note 1 by striking "299" and inserting "229"; and by striking "section 2(c) of Public Law 99–652 (40 U.S.C. § 1002(c))" and inserting "40 U.S.C. § 8902(a)(1)".
The Commentary to §2B3.1 captioned "Application Notes" is amended in Note 2 by striking "(d)" and inserting "(D)".
The Commentary to §2B4.1 captioned "Background" is amended in the fourth paragraph by striking "was recently increased from two to" and inserting "is"; and by striking "Violations" and all that follows through "to the Medicaid program." as follows:
"Violations of 42 U.S.C. §§ 1395nn(b)(1) and (b)(2), involve the offer or acceptance of a payment to refer an individual for services or items paid forunder the Medicare program. Similar provisions in 42 U.S.C. §§ 1396h(b)(1) and (b)(2) cover the offer or acceptance of a payment for referral to the Medicaid program.",
and inserting the following:
"Violations of 42 U.S.C. § 1320a-7b involve the offer or acceptance of a payment to refer an individual for services or items paid for under a federal health care program (e.g., the Medicare and Medicaid programs).".
The Commentary to §2B6.1 captioned "Background" is amended by striking "§§ 511 and 553(a)(2)" and inserting "§ 511"; and by inserting "§ 553(a)(2) and" before "2321".
The Commentary to §2C1.1 captioned "Application Notes" is amended in Note 3 by striking "(A)" after "(b)(2)".
The Commentary to §2C1.2 captioned "Application Notes" is amended in Note 4 by striking "or" before "Trust" and inserting "of".
Section 2D1.1(c) is amended in each of Notes (H) and (I) to the Drug Quantity Table by striking "(25)" and inserting "(30)".
The Commentary to §2D1.11 captioned "Application Notes" is amended in Note 6 by striking "or" after "1319(c),"; by striking § 5124,"; and by inserting after "9603(b)" the following: ", and 49 U.S.C. § 5124 (relating to violations of laws and regulations enforced by the Department of Transportation with respect to the transportation of hazardous material)".
The Commentary to §2D1.12 captioned "Application Notes" is amended in Note 3 by striking "or" after "1319(c),"; by striking § 5124,"; and by inserting after "9603(b)" the following: ", and 49 U.S.C. § 5124 (relating to violations of laws and regulations enforced by the Department of Transportation with respect to the transportation of hazardous material)".
Section 2D1.14(a)(1) is amended by striking "(3)" and inserting "(5)" both places it appears.
The Commentary to §2D2.1 captioned "Background" is amended in the last paragraph by striking "Section 6371 of the Anti-Drug Abuse Act of 1988" and inserting "21 U.S.C. § 844(a)" both places it appears.
The Commentary to §2G3.1 captioned "Application Notes" is amended in Note 1 in the paragraph that begins "‘Distribution’ means" by inserting "transmission," after "production,".
Section 2H4.2(b)(1) is amended by striking "(i)" and inserting "(A)"; and by striking "(ii)" and inserting "(B)".
The Commentary to §2K1.3 captioned "Application Notes" is amended in Note 10 by striking "(1)" and inserting "(A)"; by striking "(2)" and inserting "(B)"; by striking "(3)" and inserting "(C)"; and by striking "(4)" and inserting "(D)".
The Commentary to §2K2.1 captioned "Application Notes" is amended in Note 2 by inserting "That Is" after "Firearm"; and by inserting "that is" after "‘semiautomatic firearm".
The Commentary to §2K2.1 captioned "Application Notes" is amended in Note 10 in the first paragraph by striking "; §4A1.2, comment. (n.3)"; in Note 11 by striking "(1)" and inserting "(A)"; by striking "(2)" and inserting "(B)"; by striking "(3)" and inserting "(C)"; and by striking "(4)" and inserting "(D)".
The Commentary to §2K2.5 captioned "Application Notes" is amended in Note 2 by striking "(f)" and inserting "(g)"; and in Note 3 by inserting "See 18 U.S.C. § 924(a)(4)." after "other offense.".
The Commentary to §2L2.1 captioned "Statutory Provisions" is amended by striking "(b)," after "1325"; and by inserting ", (d)" after "(c)".
The Commentary to §2L2.2 captioned "Statutory Provisions" is amended by striking "(b)," after "1325"; and by inserting ", (d)" after "(c)".
The Commentary to §2M3.1 captioned "Application Notes" is amended in Note 1 by striking "12356" and inserting "12958 (50 U.S.C. § 435 note)".
The Commentary to §2M3.3 captioned "Statutory Provisions" is amended by striking "(b), (c)".
The Commentary to §2M3.9 captioned "Application Notes" is amended in Note 3 by inserting "See 50 U.S.C. § 421(d)." after "imprisonment.".
The Commentary to §2M6.1 captioned "Application Notes" is amended in Note 1 in the paragraph that begins "‘Foreign terrorist" by striking "1219" and inserting "1189"; and in the paragraph that begins "‘Restricted person" by striking "(b)" and inserting "(d)".
The Commentary to §2Q1.2 captioned "Background" is amended by striking "last two" and inserting "fifth and sixth".
Section 2Q1.6(a)(1) is amended by striking "Substance" and inserting "Substances".
The Commentary to §2Q2.1 captioned "Application Notes" is amended in Note 3 by inserting ", Subtitle B," after "7 C.F.R.".
Chapter Two, Part T, Subpart 2, is amended in the Introductory Commentary by striking "section" and inserting "subpart"; and by inserting "of Chapter 51 of Subtitle E" after "Subchapter J".
The Commentary to §2X5.2 captioned "Statutory Provisions" is amended by striking "§ 1129(a),".
The Commentary to §3C1.1 captioned "Application Notes" is amended in Note 4 by redesignating subdivisions (a) through (k) as (A) through (K); and in Note 5 by redesignating subdivisions (a) through (e) as (A) through (E).
The Commentary to §3E1.1 captioned "Application Notes" is amended in Note 1 by redesignating subdivisions (a) through (h) as (A) through (H).
Section 5K2.17 is amended by striking "(A)" and inserting "(1)"; and by striking "(B)" and inserting "(2)".
Appendix A (Statutory Index) is amended in the line referenced to 7 U.S.C. § 13(f) by striking "(f)" and inserting "(e)";
in the line referenced to 8 U.S.C. § 1325(b) by striking "(b)" and inserting "(c)";
in the line referenced to 8 U.S.C. § 1325(c) by striking "(c)" and inserting "(d)";
by inserting after the line referenced to 18 U.S.C. § 247 the following:
"18 U.S.C. § 248 2H1.1";
by striking the line referenced to 18 U.S.C. § 1129(a);
by inserting after the line referenced to 42 U.S.C. § 1320a-7b the following:
"42 U.S.C. § 1320a-8b 2X5.1, 2X5.2";
in the line referenced to 50 U.S.C. § 783(b) by striking "(b)"; and
by striking the line referenced to 50 U.S.C. § 783(c).
Reason for Amendment: This two-part amendment makes various technical and conforming changes to the guidelines.
First, the amendment makes changes to the Guidelines Manual to promote accuracy and completeness. For example, it corrects typographical errors, and it addresses cases in which the Guidelines Manual provides information (such as a reference to a guideline, statute, or regulation) that has become incorrect or obsolete. Specifically, it amends:
(1) §1B1.3 (Relevant Conduct), Application Note 6, to ensure that two quotations contained in that note are accurate;
(2) §1B1.8 (Use of Certain Information), Application Note 2, to revise a reference to the "Probation Service";
(3) §1B1.9 (Class B or C Misdemeanors and Infractions), Application Note 1, to reflect that some infractions do not have any authorized term of imprisonment;
(4) §1B1.11 (Use of Guidelines Manual in Effect on Date of Sentencing), Application Note 2, to correct a typographical error;
(5) §2A1.1 (First Degree Murder), Application Note 1, to provide specific citations for the examples given;
(6) §2A3.2 (Criminal Sexual Abuse of a Minor Under the Age of Sixteen Years (Statutory Rape) or Attempt to Commit Such Acts), Application Note 5, to correct typographical errors;
(7) §2A3.3 (Criminal Sexual Abuse of a Ward or Attempt to Commit Such Acts), Application Note 1, to correct a typographical error;
(8) §2A3.5 (Failure to Register as a Sex Offender), Application Note 1, to ensure that the statutory definitions referred to in that note are accurately cited;
(9) §2B1.4 (Insider Trading), Application Note 1, to correct a typographical error;
(10) §2B1.5 (Theft of, Damage to, or Destruction of, Cultural Heritage Resources), Application Note 1, to provide updated citations to statutes and regulations;
(11) §2B3.1 (Robbery), Application Note 2, to correct a typographical error;
(12) §2B4.1 (Bribery in Procurement of Bank Loan and Other Commercial Bribery), Background, to provide an updated description and reference to the statute criminalizing bribery in connection with Medicare and Medicaid referrals;
(13) §2B6.1 (Altering or Removing Motor Vehicle Identification Numbers), Background, to update the statutory maximum term of imprisonment for violations of 18 U.S.C. § 553(a)(2);
(14) §2C1.1 (Offering, Giving, Soliciting, or Receiving a Bribe), Application Note 3, to ensure that the subsection relating to "loss" is accurately cited;
(15) §2C1.2 (Offering, Giving, Soliciting, or Receiving a Gratuity), Application Note 4, to correct a typographical error;
(16) §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking), in the Notes to the Drug Quantity Table, to provide updated citations to regulations;
(17) both §2D1.11 (Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical), Application Note 6, and §2D1.12 (Unlawful Possession, Manufacture, Distribution, Transportation, Exportation, or Importation of Prohibited Flask, Equipment, Chemical, Product, or Material), Application Note 3, to provide a more accurate statutory citation and description;
(18) §2D1.14 (Narco-Terrorism), subsection (a)(1), to provide an updated guideline reference;
(19) §2D2.1 (Unlawful Possession), Commentary, to provide updated statutory references;
(20) §2G3.1 (Importing, Mailing, or Transporting Obscene Matter), Application Note 1, to make the definition of "distribution" in that guideline consistent with the definition of "distribution" in the child pornography guidelines;
(21) §2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition), Application Notes 2 and 10, to ensure that a quotation contained in Note 2 is accurate and that a citation in Note 10 is accurate;
(22) §2K2.5 (Possession of Firearm or Dangerous Weapon in Federal Facility; Possession or Discharge of Firearm in School Zone), Application Notes 2 and 3, to provide updated statutory references;
(23) both §2L2.1 (Trafficking in a Document Relating to Naturalization, Citizenship, or Legal Resident Status, or a United States Passport), Statutory Provisions, and §2L2.2 (Fraudulently Acquiring Documents Relating to Naturalization, Citizenship, or Legal Resident Status for Own Use), Statutory Provisions, to provide updated statutory references;
(24) §2M3.1 (Gathering or Transmitting National Defense Information to Aid a Foreign Government), Application Note 1, to provide an updated reference to an executive order;
(25) §2M3.3 (Transmitting National Defense Information), to provide an updated statutory reference;
(26) §2M3.9 (Disclosure of Information Identifying a Covert Agent), Application Note 3, to provide an updated statutory reference;
(27) §2M6.1 (Unlawful Activity Involving Nuclear Material, Weapons, or Facilities, Biological Agents, Toxins, or Delivery Systems, Chemical Weapons, or Other Weapons of Mass Destruction), Application Note 1, to provide updated statutory references;
(28) §2Q1.2 (Mishandling of Hazardous or Toxic Substances or Pesticides), Background, to provide updated guideline references;
(29) §2Q1.6 (Hazardous or Injurious Devices on Federal Lands), subsection (a)(1), to correct a typographical error;
(30) §2Q2.1 (Offenses Involving Fish, Wildlife, and Plants), Application Note 3, to provide a more complete reference to regulations;
(31) Chapter Two, Part T, Subpart 2 (Alcohol and Tobacco Taxes), Introductory Commentary, to provide a more complete statutory reference;
(32) §2X5.2 (Class A Misdemeanors (Not Covered by Another Specific Offense Guideline)), to strike an erroneous statutory reference;
(33) Appendix A (Statutory Index), to provide updated statutory references and strike an erroneous statutory reference.
Second, the amendment makes a series of changes to the Guidelines Manual to promote stylistic consistency in how subdivisions are designated. When dividing guideline sections into subdivisions, the guidelines generally follow the structure used by Congress to divide statutory sections into subdivisions. Thus, a section is broken into subsections (starting with "(a)"), which are broken into paragraphs (starting with "(1)"), which are broken into subparagraphs (starting with "(A)"), which are broken into clauses (starting with "(i)"), which are broken into subclauses (starting with "(I)"). For a generic term, "subdivision" is also used. When dividing application notes into subdivisions, the guidelines generally follow the same structure, except that subsections and paragraphs are not used; the first subdivisions used are subparagraphs (starting with "(A)"). The amendment identifies places in the Guidelines Manual where these principles are not followed and brings them into conformity.
Effective Date: The effective date of this amendment is November 1, 2010.