AMENDMENT 753
Amendment: Section 2K2.1(a) is amended in subdivision (4)(B) by striking "or" before "(II) is"; and by adding at the end the following:
"or (III) is convicted under 18 U.S.C. § 922(a)(6) or § 924(a)(1)(A) and committed the offense with knowledge, intent, or reason to believe that the offense would result in the transfer of a firearm or ammunition to a prohibited person;";
and in subdivision (6) by striking "or" before "(B)"; and by adding at the end the following:
"or (C) is convicted under 18 U.S.C. § 922(a)(6) or § 924(a)(1)(A) and committed the offense with knowledge, intent, or reason to believe that the offense would result in the transfer of a firearm or ammunition to a prohibited person;".
Section 2K2.1(b) is amended by striking subdivision (6) as follows:
"(6) If the defendant used or possessed any firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense, increase by 4 levels. If the resulting offense level is less than level 18, increase to level 18.",
and inserting a new subdivision (6) as follows:
"(6) If the defendant—
(A) possessed any firearm or ammunition while leaving or attempting to leave the United States, or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be transported out of the United States; or
(B) used or possessed any firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense,
increase by 4 levels. If the resulting offense level is less than level 18, increase to level 18.".
The Commentary to §2K2.1 captioned "Application Notes" is amended in Note 13(D) by inserting "(B)" after "(b)(6)".
The Commentary to §2K2.1 captioned "Application Notes" is amended in Note 14 by inserting "(B)" after "(b)(6)" each place it appears.
The Commentary to §2K2.1 captioned "Application Notes" is amended by adding at the end the following:
"15. Certain Convictions Under 18 U.S.C. §§ 922(a)(6), 922(d), and 924(a)(1)(A).—In a case in which the defendant is convicted under 18 U.S.C. §§ 922(a)(6), 922(d), or 924(a)(1)(A), a downward departure may be warranted if (A) none of the enhancements in subsection (b) apply, (B) the defendant was motivated by an intimate or familial relationship or by threats or fear to commit the offense and was otherwise unlikely to commit such an offense, and (C) the defendant received no monetary compensation from the offense.".
The Commentary to §2M5.1 captioned "Statutory Provisions" is amended by inserting "22 U.S.C. § 8512; 50 U.S.C. § 1705; " after "2332d;".
Section 2M5.2(a)(2) is amended by inserting "(A)" before "non-fully"; and by striking "ten" and inserting "two, (B) ammunition for non-fully automatic small arms, and the number of rounds did not exceed 500, or (C) both".
The Commentary to §2M5.2 captioned "Statutory Provisions" is amended by inserting ", 8512; 50 U.S.C. § 1705" after "2780".
The Commentary to §2M5.3 captioned "Statutory Provisions" is amended by inserting "22 U.S.C. § 8512;" before "50 U.S.C. "; and by striking "§ 1701,".
Appendix A (Statutory Index) is amended by inserting after the line referenced to 22 U.S.C. § 4221 the following:
"22 U.S.C. § 8512 2M5.1, 2M5.2, 2M5.3";
by striking the line referenced to 50 U.S.C. § 1701;
and in the line referenced to 50 U.S.C. § 1705 by inserting "2M5.1, 2M5.2," before "2M5.3".
Reason for Amendment: This multi-part amendment is a result of the Commission's review of offenses involving firearms crossing the border. The Commission undertook this review in response to concerns that the illegal flow of firearms across the southwestern border of the United States is contributing to violence along the border and ultimately harming the national security of the United States. The Commission has considered sentencing data, heard testimony, and received comment on the general concern of firearms crossing the border illegally and a specific concern that "straw purchasers" (i.e., individuals who buy firearms on behalf of others, typically "prohibited persons" who are not allowed to buy or possess firearms themselves) are contributing to this illegal flow of firearms to a significant degree.
The amendment amends the primary firearms guideline, §2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition), to address the general concern of firearms crossing the border and the specific concern about straw purchasers. The amendment also amends the guideline for arms export violations, §2M5.2 (Exportation of Arms, Munitions, or Military Equipment or Services Without Required Validated Export License), to provide greater penalties for export offenses involving small arms and more guidance on export offenses involving ammunition. Finally, the amendment revises the references in Appendix A (Statutory Index) for certain offenses, including providing a reference for a new offense created by the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010, Pub. L. 111–195.
Firearms Leaving the United States
Subsection (b)(6) provides a 4-level enhancement, and a minimum offense level of 18, if the defendant used or possessed any firearm or ammunition in connection with another felony offense, or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense. The amendment establishes a new prong (A) in subsection (b)(6) that applies "if the defendant possessed any firearm or ammunition while leaving or attempting to leave the United States; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be transferred out of the United States", and redesignates the existing provision as prong (B). Under the amendment, a defendant receives the 4-level enhancement and minimum offense level 18 if either prong applies. The Commission determined that possessing a firearm while leaving or attempting to leave the United States is conduct sufficiently similar in seriousness to possessing a firearm in connection with another felony offense to warrant similar punishment. Likewise, possessing or transferring a firearm with knowledge, intent, or reason to believe that it would be transported out of the United States is conduct sufficiently similar in seriousness to possessing or transferring a firearm with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense to warrant similar punishment.
Prior to the amendment, some courts have applied subsection (b)(6) to cases in which the defendant has transported or attempted to transport firearms across the border. These courts have concluded that because transporting a firearm outside the United States is generally a felony under federal law, such conduct may qualify as "another felony offense" for purposes of subsection (b)(6). See, e.g., United States v. Juarez, 626 F.3d 246 (5th Cir. 2010) (holding that, under the guideline as amended by the Commission in 2008, the district court did not plainly err in applying §2K2.1(b)(6) to a defendant who transferred firearms with reason to believe they would be taken across the border in a manner that would violate 22 U.S.C. § 2778(b) and (c), which prohibits, among other things, the unlicensed export of defense articles and punishes such violations by up to 20 years' imprisonment). However, for clarity and to promote consistency of application, the Commission created a separate, distinct prong (A) in subsection (b)(6) to cover this conduct.
Straw Purchasers
Second, the amendment amends §2K2.1 to address the concerns about straw purchasers. The amendment increases penalties for certain defendants convicted under 18 U.S.C. §§ 922(a)(6) or 924(a)(1)(A) for making a false statement in connection with a firearms transaction. Specifically, the amendment increases penalties for a defendant who is convicted under 18 U.S.C. §§ 922(a)(6) or 924(a)(1)(A) and committed the offense with knowledge, intent, or reason to believe that the offense would result in the transfer of a firearm or ammunition to a prohibited person. The base offense level for a defendant convicted under either of these statutes has been level 12, or level 18 if the offense involved a firearm described in 26 U.S.C. § 5845(a). See §2K2.1(a)(5), (7). The amendment amends subsections (a)(4)(B) and (a)(6) to increase the base offense level for these defendants to level 14, or 20 if the offense involved either a semiautomatic firearm that is capable of accepting a large capacity magazine or a firearm described in 26 U.S.C. § 5845(a).
The amendment ensures that defendants convicted under 18 U.S.C. §§ 922(a)(6) or 924(a)(1)(A) receive the same punishment as defendants convicted under a third statute used to prosecute straw purchasers, 18 U.S.C. § 922(d), when the conduct is similar. Section 922(d) differs from 18 U.S.C. §§ 922(a)(6) and 924(a)(1)(A) in that it requires as an element of the offense that the defendant sell or otherwise dispose of a firearm or ammunition to a prohibited person knowing or having reasonable cause to believe that such person is a prohibited person. Section 2K2.1 has accounted for the increased offense seriousness and offender culpability in violations of 18 U.S.C. § 922(d) by providing base offense levels for convictions under section 922(d) that are generally 2 levels higher than for convictions under 18 U.S.C. §§ 922(a)(6) and 924(a)(1)(A). See §2K2.1(a)(4)(B), (a)(6)(B). The Commission determined that defendants who are convicted under 18 U.S.C. §§ 922(a)(6) or 924(a)(1)(A) for making a false statement in connection with a firearms transaction and committed the offense with knowledge, intent, or reason to believe that the offense would result in the transfer of a firearm or ammunition to a prohibited person have engaged in conduct similar to the elements of 18 U.S.C. § 922(d), are similarly culpable, and therefore warrant a similar sentence under §2K2.1.
In addition, the amendment provides a new Application Note 15 stating that, in a case in which the defendant is convicted under any of the three statutes, a downward departure may be warranted if (A) none of the enhancements in subsection (b) of §2K2.1 apply, (B) the defendant was motivated by an intimate or familial relationship or by threats or fear to commit the offense and was otherwise unlikely to commit such an offense, and (C) the defendant received no monetary compensation from the offense. The Commission determined that a defendant meeting these criteria may be less culpable than the typical straw purchaser.
Export Offenses Involving Small Arms or Ammunition
Third, the amendment amends §2M5.2 to narrow the application of the alternative base offense level of 14 at subsection (a)(2). The alternative base offense level of 14 has applied "if the offense involved only non-fully automatic small arms (rifles, handguns, or shotguns) and the number of weapons did not exceed ten." See §2M5.2(a)(2). The amendment reduces the threshold number of small arms in subsection (a)(2) from ten to two. The Commission determined that export offenses involving more than two firearms are more serious and more likely to involve trafficking. Narrowing the application of subsection (a)(2) also brings §2M5.2 into greater conformity with §2K2.1 in how it accounts for the number of firearms involved in the offense. See §2K2.1(b)(1) (providing a tiered enhancement of 2 to 10 levels if the offense involved three or more firearms); §2K2.1, comment. (n.13) (specifying that the trafficking enhancement in §2K2.1(b)(5) applies if the offense involved two or more firearms and other requirements are also met).
The amendment also amends §2M5.2 to address cases in which the defendant possessed ammunition, either in a case involving ammunition only or in a case involving ammunition and small arms. There appears to be differences in how §2M5.2 is being applied by the courts in such cases. Under the amendment, a defendant with ammunition will receive the alternative base offense level of 14 if the ammunition consisted of not more than 500 rounds of ammunition for small arms. Such ammunition typically is sold in quantities of not more than 500 rounds, depending on the manufacturer and the type of ammunition. The Commission determined that, as with export offenses involving more than two firearms, export offenses involving more than 500 rounds of ammunition are more serious and more likely to involve trafficking.
References in Appendix A (Statutory Index)
Fourth, the amendment amends Appendix A (Statutory Index) to expand the number of guidelines to which offenses under 50 U.S.C. § 1705 are referenced. Section 1705 makes it unlawful to violate, attempt to violate, conspire to violate, or cause a violation of any license, order, regulation, or prohibition issued under the International Emergency Economic Powers Act (50 U.S.C. § 1701 et seq.). Any person who willfully commits, willfully attempts or conspires to commit, or aids or abets in the commission of such an unlawful act may be imprisoned for not more than 20 years. See 50 U.S.C. § 1705(c). Appendix A (Statutory Index) previously contained two separate entries: the criminal offense, 50 U.S.C. § 1705, was referenced to §2M5.3 (Providing Material Support or Resources to Designated Foreign Terrorist Organizations or Specially Designated Global Terrorists, or For a Terrorist Purpose), while another statute that contains no criminal offense, 50 U.S.C. § 1701, was referenced to §2M5.3 as well as to §§2M5.1 (Evasion of Export Controls; Financial Transactions with Countries Supporting International Terrorism) and 2M5.2 (Exportation of Arms, Munitions, or Military Equipment or Services Without Required Validated Export License). The amendment revises the entry for 50 U.S.C. § 1705 to include all three guidelines, §§2M5.1, 2M5.2, and 2M5.3, and deletes as unnecessary the entry for 50 U.S.C. § 1701.
Finally, the amendment addresses a new offense created by the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010, Pub. L. 111–195. Section 103 of that Act (22 U.S.C. § 8512) makes it unlawful to import into the United States certain goods or services of Iranian origin, or export to Iran certain goods, services, or technology, and provides that the penalties under 50 U.S.C. § 1705 apply to a violation. The amendment amends Appendix A (Statutory Index) to reference the new offense at 22 U.S.C. § 8512 to §§2M5.1, 2M5.2, and 2M5.3.
Effective Date: The effective date of this amendment is November 1, 2011.