AMENDMENT 629

Amendment: Section 2K1.3(a) is amended by striking the text of subdivision (3) as follows:

"16, if the defendant is a prohibited person; or knowingly distributed explosive materials to a prohibited person; or",

and inserting the following:

"16, if the defendant (A) was a prohibited person at the time the defendant committed the instant offense; or (B) knowingly distributed explosive materials to a prohibited person; or".

The Commentary to §2K1.3 captioned "Statutory Provisions" is amended by inserting "(l)-(o), (p)(2)," after "(i),".

The Commentary to §2K1.3 captioned "Application Notes" is amended by striking the text of Note 3 as follows:

"‘Prohibited person,’ as used in subsection (a)(3), means anyone who: (i) is under indictment for, or has been convicted of, a ‘crime punishable by imprisonment for a term exceeding one year,’ as defined at 18 U.S.C. § 841(l); (ii) is a fugitive from justice; (iii) is an unlawful user of, or is addicted to, any controlled substance; or (iv) has been adjudicated as a mental defective or involuntarily committed to a mental institution.",

and inserting the following:

"For purposes of subsection (a)(3), ‘prohibited person’ means any person described in 18 U.S.C. § 842(i).".

Section 2K2.1(a)(4)(B) is amended by striking "is" after "(i)" and inserting "was"; and by inserting "at the time the defendant committed the instant offense" after "prohibited person".

Section 2K2.1(a)(6) is amended by striking "is" after "(A)" and inserting "was"; and by inserting "at the time the defendant committed the instant offense" after "prohibited person".

The Commentary to §2K2.1 captioned "Application Notes" is amended by striking the text of Note 6 as follows:

‘Prohibited person,’ as used in subsections (a)(4)(B) and (a)(6), means anyone who: (i) is under indictment for, or has been convicted of, a ‘crime punishable by imprisonment for more than one year,’ as defined by 18 U.S.C. § 921(a)(20); (ii) is a fugitive from justice; (iii) is an unlawful user of, or is addicted to, any controlled substance; (iv) has been adjudicated as a mental defective or involuntarily committed to a mental institution; (v) being an alien, is illegally or unlawfully in the United States; (vi) is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child as defined in 18 U.S.C. § 922(d)(8); or (vii) has been convicted in any court of a misdemeanor crime of domestic violence as defined in 18 U.S.C. § 921(a)(33).",

and inserting the following:

"For purposes of subsections (a)(4)(B) and (a)(6), ‘prohibited person’ means any person described in 18 U.S.C. § 922(g) or § 922(n).".

Reason for Amendment: This amendment makes two revisions regarding the definition of "prohibited person" in subsection (a)(3) of §2K1.3 (Unlawful Receipt, Possession, or Transportation of Explosive Materials; Prohibited Transactions Involving Explosive Materials) and subsections (a)(4)(B) and (a)(6) of §2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition). First, the amendment adopts the definitions of prohibited person found in specific statutes for explosive and firearm offenses. (There is no uniform statutory definition of prohibited person.) The relevant statutory provision for §2K1.3 is 18 U.S.C. § 842(i), and the relevant statutory provisions for §2K2.1 are 18 U.S.C. § 922(g) and (n).

Second, the amendment clarifies that the pertinent alternative base offense level applies only when the offender attains the requisite status prior to committing the instant offense. This clarification is consistent with the amendment on prior felonies, which provides for increased punishment only when the offender sustains certain felony convictions prior to committing the instant offense.

Effective Date: The effective date of this amendment is November 1, 2001.