2005 Federal Sentencing Guidelines
Chapter 2 - PART A - OFFENSES AGAINST THE
PERSON
§2A6.2. Stalking or Domestic
Violence
(a) Base Offense Level: 18
(b) Specific Offense Characteristic
(1) If the offense involved one of the following aggravating factors: (A)
the violation of a court protection order; (B) bodily injury; (C) possession,
or threatened use, of a dangerous weapon; or (D) a pattern of activity involving
stalking, threatening, harassing, or assaulting the same victim, increase
by 2 levels. If the offense involved
more than one of these aggravating factors, increase by 4 levels.
(c) Cross Reference
(1) If the offense involved the commission of another criminal offense,
apply the offense guideline from Chapter Two, Part A (Offenses Against the
Person) most applicable to that other criminal offense, if the resulting
offense level is greater than that determined above.
Commentary
Statutory Provisions: 18
U.S.C. §§ 2261-2262.
Application Notes:
1. For purposes of this guideline:
"Bodily injury" and "dangerous weapon" are defined in the Commentary to §1B1.1
(Application Instructions).
"Pattern of activity involving stalking, threatening, harassing, or assaulting
the same victim" means any combination of two or more separate instances of
stalking, threatening, harassing, or assaulting the same victim, whether or
not such conduct resulted in a conviction. For example, a single instance of
stalking accompanied by a separate instance of threatening, harassing, or assaulting
the same victim constitutes a pattern of activity for purposes of this guideline.
"Stalking" means (A) traveling with the intent to kill, injure, harass, or
intimidate another person and, in the course of, or as a result of, such travel,
placing the person in reasonable fear of death or serious bodily injury to
that person or an immediate family member of that person; or (B) using the
mail or any facility of interstate or foreign commerce to engage in a course
of conduct that places that person in reasonable fear of the death of, or serious
bodily injury to, that person or an immediate family member of that person. See 18
U.S.C. § 2261A. "Immediate family member" (A) has the meaning given that
term in 18 U.S.C. § 115(c)(2); and (B) includes a spouse or intimate partner. "Course
of conduct" and "spouse or intimate partner" have the meaning given those terms
in 18 U.S.C. § 2266(2) and (7), respectively.
2. Subsection (b)(1) provides for a two-level or four-level enhancement based
on the degree to which the offense involved aggravating factors listed in that
subsection. If the offense involved aggravating factors more serious than the
factors listed in subsection (b)(1), the cross reference in subsection (c)
most likely will apply, if the resulting offense level is greater, because
the more serious conduct will be covered by another offense guideline from
Chapter Two, Part A. For example, §2A2.2 (Aggravated Assault) most likely
would apply pursuant to subsection (c) if the offense involved assaultive conduct
in which injury more serious than bodily injury occurred or if a dangerous
weapon was used rather than merely possessed.
3. In determining whether subsection (b)(1)(D) applies, the court shall consider,
under the totality of the circumstances, any conduct that occurred prior to
or during the offense; however, conduct that occurred prior to the offense
must be substantially and directly connected to the offense. For example, if
a defendant engaged in several acts of stalking the same victim over a period
of years (including acts that occurred prior to the offense), then for purposes
of determining whether subsection (b)(1)(D) applies, the court shall look to
the totality of the circumstances, considering only those prior acts of stalking
the victim that have a substantial and direct connection to the offense.
Prior convictions taken into account under subsection (b)(1)(D) are also
counted for purposes of determining criminal history points pursuant to Chapter
Four, Part A (Criminal History).
4. For purposes of Chapter Three, Part D (Multiple Counts), multiple counts
involving stalking, threatening, or harassing the same victim are grouped together
(and with counts of other offenses involving the same victim that are covered
by this guideline) under §3D1.2 (Groups of Closely Related Counts). For
example, if the defendant is convicted of two counts of stalking the defendant’s
ex-spouse under 18 U.S.C. § 2261A and one count of interstate domestic
violence involving an assault of the ex-spouse under 18 U.S.C. § 2261,
the stalking counts would be grouped together with the interstate domestic
violence count. This grouping procedure avoids unwarranted "double counting" with
the enhancement in subsection (b)(1)(D) (for multiple acts of stalking, threatening,
harassing, or assaulting the same victim) and recognizes that the stalking
and interstate domestic violence counts are sufficiently related to warrant
grouping.
Multiple counts that are cross referenced to another offense guideline pursuant
to subsection (c) are to be grouped together if §3D1.2 (Groups of Closely
Related Counts) would require grouping of those counts under that offense guideline.
Similarly, multiple counts cross referenced pursuant to subsection (c) are
not to be grouped together if §3D1.2 would preclude grouping of the counts
under that offense guideline. For example, if the defendant is convicted of
multiple counts of threatening an ex-spouse in violation of a court protection
order under 18 U.S.C. § 2262 and the counts are cross referenced to §2A6.1
(Threatening or Harassing Communications), the counts would group together
because Application Note 2 of §2A6.1 specifically requires grouping. In
contrast, if the defendant is convicted of multiple counts of assaulting the
ex-spouse in violation of a court protection order under 18 U.S.C. § 2262
and the counts are cross referenced to §2A2.2 (Aggravated Assault), the
counts probably would not group together inasmuch as §3D1.2(d) specifically
precludes grouping of counts covered by §2A2.2 and no other provision
of §3D1.2 would likely apply to require grouping.
Multiple counts involving different victims are not to be grouped under §3D1.2
(Groups of Closely Related Counts).
5. If the defendant received an enhancement under subsection (b)(1) but that
enhancement does not adequately reflect the extent or seriousness of the conduct
involved, an upward departure may be warranted. For example, an upward departure
may be warranted if the defendant stalked the victim on many occasions over
a prolonged period of time.
Historical Note: Effective
November 1, 1997 (see Appendix
C, amendment 549). Amended effective November 1, 2001 (see Appendix
C, amendment 616).