Amendment: The Commentary to §2J1.1 captioned "Application Notes" is amended in Note 2 by inserting "In such a case, do not apply §2B1.1(b)(8)(C) (pertaining to a violation of a prior, specific judicial order)." after "failed to pay.".
Reason for Amendment: This amendment addresses a circuit conflict on whether the specific offense characteristic at subsection (b)(8)(C) of §2B1.1 (Theft, Property Destruction, and Fraud) applies to a defendant convicted of an offense involving the willful failure to pay court-ordered child support (i.e., a violation of 18 U.S.C. § 228). The specific offense characteristic in §2B1.1(b)(8)(C) applies if the offense involved "a violation of any prior, specific judicial or administrative order, injunction, decree, or process not addressed elsewhere in the guidelines".
It provides an enhancement of 2 levels and a minimum offense level of level 10.
Offenses under section 228 are referenced in Appendix A (Statutory Index) to §2J1.1 (Contempt), which directs the court to apply §2X5.1 (Other Offenses), which in turn directs the court to apply the most analogous offense guideline. The commentary to §2J1.1 provides that, in a case involving a violation of section 228, the most analogous offense guideline is §2B1.1. See §2J1.1, comment. (n.2).
Some circuits have disagreed over whether to apply §2B1.1(b)(8)(C) in a case involving a violation of section 228. The Second and Eleventh Circuits have held that applying §2B1.1(b)(8)(C) in a section 228 case is permissible because the failure to pay the child support and the violation of the order are distinct harms. See United States v. Maloney, 406 F.3d 149, 153-54 (2d Cir. 2005); United States v. Phillips, 363 F.3d 1167, 1169 (11th Cir. 2004). However, the Seventh Circuit has held that applying §2B1.1(b)(8)(C) in a section 228 case is impermissible double counting. See United States v. Bell, 598 F.3d 366 (7th Cir. 2010) ("apply[ing] both the cross-reference for § 228 and the enhancement for violation of a court or administrative order is impermissible double counting").
The amendment resolves the conflict by amending the commentary to §2J1.1 to specify that, in a case involving a violation of section 228, §2B1.1(b)(8)(C) does not apply. The Commission determined that in a section 228 case the fact that the offense involved a violation of a court order is adequately accounted for by the base offense level.
Effective Date: The effective date of this amendment is November 1, 2011.