AMENDMENT 676

Amendment: Section 2J1.2(b) is amended by striking subdivision (1) as follows:

"(1) If the offense involved causing or threatening to cause physical injury to a person, or property damage, in order to obstruct the administration of justice, increase by 8 levels.",

and inserting the following:

"(1) (Apply the greater):

(A) If the offense involved causing or threatening to cause physical injury to a person, or property damage, in order to obstruct the administration of justice, increase by 8 levels.

(B) If (i) defendant was convicted under 18 U.S.C. § 1001 or § 1505; and (ii) the statutory maximum term of imprisonment relating to international terrorism or domestic terrorism is applicable, increase by 12 levels.".

The Commentary to §2J1.2 captioned "Statutory Provisions" is amended by striking "18 U.S.C. §§ 1503" and inserting the following:

"18 U.S.C. §§ 1001 when the statutory maximum term of imprisonment relating to international terrorism or domestic terrorism is applicable, 1503".

The Commentary to §2J1.2 captioned "Application Notes" is amended in Note 1 by inserting after "Definitions.—For purposes of this guideline:" the following:

"‘Domestic terrorism’ has the meaning given that term in 18 U.S.C. § 2331(5).

‘International terrorism’ has the meaning given that term in 18 U.S.C. § 2331(1).".

The Commentary to §2J1.2 captioned "Application Notes" is amended by striking Note 2 as follows:

"2. Nonapplicability of Chapter Three, Part C.—For offenses covered under this section, Chapter Three, Part C (Obstruction) does not apply, unless the defendant obstructed the investigation, prosecution, or sentencing of the obstruction of justice count.",

and inserting the following:

"2. Chapter Three Adjustments.—

(A) Inapplicability of Chapter Three, Part C.—For offenses covered under this section, Chapter Three, Part C (Obstruction) does not apply, unless the defendant obstructed the investigation, prosecution, or sentencing of the obstruction of justice count.

(B) Interaction with Terrorism Adjustment.—If §3A1.4 (Terrorism) applies, do not apply subsection (b)(1)(B).".

Appendix A (Statutory Index) is amended in the line referenced to "18 U.S.C. § 1001" by inserting ", 2J1.2 when the statutory maximum term of imprisonment relating to international terrorism or domestic terrorism is applicable" after 2B1.1".

Reason for Amendment: This amendment implements section 6703 of the Intelligence Reform and Terrorism Prevention Act of 2004 (the "Act"), Pub. L. 108–458. Section 6703(a) provides an enhanced penalty of not more than 8 years of imprisonment for offenses under sections 1001(a) and 1505 of title 18, United States Code, "if the offense involves international or domestic terrorism (as defined in section 2331)." Section 6703(b) requires the Sentencing Commission to amend the sentencing guidelines to provide for "an increased offense level for an offense under sections 1001(a) and 1505 of title 18, United States Code, if the offense involves international or domestic terrorism, as defined in section 2331 of such title." The Commission is directed under section 3 of the United States Parole Commission Extension and Sentencing Commission Authority Act of 2005, Pub. L. 109–76, to promulgate this amendment as an emergency amendment.

First, the amendment references convictions under 18 U.S.C. § 1001 to §2J1.2 (Obstruction of Justice) "when the statutory maximum term of imprisonment relating to international or domestic terrorism is applicable." It also adds a new specific offense characteristic at §2J1.2(b)(1)(B) providing for a 12 level increase for a defendant convicted under 18 U.S.C. §§ 1001 and 1505 "when the statutory maximum term of imprisonment relating to international or domestic terrorism is applicable." This 12 level increase is applied in lieu of the current 8 level increase for injury or threats to persons or property. The increase of 12 levels is intended to provide parity with the treatment of federal crimes of terrorism within the limits of the 8 year statutory maximum penalty. It is also provided to ensure a 5 year sentence of imprisonment for offenses that involve international or domestic terrorism.

Second, the amendment adds to Application Note 1 definitions for "domestic terrorism" and "international terrorism," using the meanings given the terms at 18 U.S.C. § 2331(5) and (1), respectively.

Third, the amendment adds to Application Note 2 an instruction that if §3A1.4 (Terrorism) applies, do not apply §2J1.2(b)(1)(B).

Effective Date: The effective date of this amendment is October 24, 2005.