AMENDMENT 729

Amendment: Section 2A6.1(b) is amended by redesignating subdivision (5) as subdivision (6); by inserting after subdivision (4) the following:

"(5) If the defendant (A) is convicted under 18 U.S.C. § 115, (B) made a public threatening communication, and (C) knew or should have known that the public threatening communication created a substantial risk of inciting others to violate 18 U.S.C. § 115, increase by 2 levels.";

and in subdivision (6), as redesignated by this amendment, by striking "and (4)" and inserting "(4), and (5)".

The Commentary to §2A6.1 captioned "Background" is amended by adding at the end the following:

" Subsection (b)(5) implements, in a broader form, the directive to the Commission in section 209 of the Court Security Improvement Act of 2007, Public Law 110–177.".

Appendix A (Statutory Index) is amended in the line referenced to 18 U.S.C. § 1513 by inserting "2A1.1, 2A1.2, 2A1.3, 2A2.1, 2A2.2, 2A2.3, 2B1.1," before "2J1.2".

Reason for Amendment: This amendment responds to the Court Security Improvement Act of 2007, Pub. L. 110–177 (the "Act"), and other related issues.

First, the amendment responds to the directive in section 209 of the Act, which required the Commission to review the guidelines applicable to threats punishable under 18 U.S.C. § 115 (Influencing, impeding, or retaliating against a Federal official by threatening or injuring a family member) that occur over the Internet, and determine "whether and by how much that circumstance should aggravate the punishment pursuant to section 994 of title 28, United States Code." The directive further required the Commission to consider the number of such threats made, the intended number of recipients of such threats, and whether the initial senders of such threats were acting in an individual capacity or as part of a larger group.

The amendment implements the directive by amending §2A6.1 (Threatening or Harassing Communications; Hoaxes; False Liens) to provide a new two-level enhancement for a case in which the defendant is convicted under 18 U.S.C. § 115, made a public threatening communication, and knew or should have known that the public threatening communication created a substantial risk of inciting others to violate 18 U.S.C. § 115. The Commission determined that the policy concerns underlying the directive regarding threats occurring over the Internet apply equally to threats made public by other means (e.g., radio, television broadcast) and that the response to the directive therefore should be technology neutral. The threat guideline, §2A6.1, adequately accounts for offenses involving multiple threats and multiple victims through the existing specific offense characteristic at subsection (b)(2) and the upward departure provision in Application Note 4.

Second, the amendment amends Appendix A (Statutory Index) to add references for 18 U.S.C. § 1513 (Retaliating against a witness, victim, or an informant) to §§2A1.1 (First Degree Murder), 2A1.2 (Second Degree Murder), 2A1.3 (Voluntary Manslaughter), 2A2.1 (Assault with Intent to Commit Murder; Attempted Murder), 2A2.2 (Aggravated Assault), 2A2.3 (Minor Assault), and 2B1.1 (Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving Stolen Property; Property Damage or Destruction; Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States), in addition to §2J1.2 (Obstruction of Justice). The additional references more adequately reflect the range of conduct covered by 18 U.S.C. § 1513, including killing or attempting to kill a witness, causing bodily injury to a witness, and damaging the tangible property of a witness. In addition, 18 U.S.C. § 1512 (Tampering with a witness, victim, or an informant), which covers a similar range of conduct, including killing or attempting to kill a witness and using physical force against a witness, is referenced to the same Chapter Two, Part A guidelines.

Effective Date: The effective date of this amendment is November 1, 2009.