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AMENDMENT 646

Amendment: The Commentary to §2B1.1 captioned "Application Notes" is amended in subdivision (A) of Note 7 by striking "18 U.S.C. 1028(d)(3)" and inserting "18 U.S.C. 1028(d)(4)".

Section 2B4.1 is amended by striking subsection (b)(2) as follows:

"(2) If the offense --

(A) substantially jeopardized the safety and soundness of a financial institution; or

(B) affected a financial institution and the defendant derived more than $1,000,000 in gross receipts from the offense,

increase by 4 levels. If the resulting offense level is less than level 24, increase to level 24.",

and inserting the following:

"(2) (Apply the greater) If—

(A) the defendant derived more than $1,000,000 in gross receipts from one or more financial institutions as a result of the offense, increase by 2 levels; or

(B) the offense substantially jeopardized the safety and soundness of a financial institution, increase by 4 levels.

If the resulting offense level determined under subdivision (A) or (B) is less than level 24, increase to level 24.".

The Commentary to §2B4.1 captioned "Application Notes" is amended by striking Notes 4 and 5 as follows:

"4. An offense shall be deemed to have ‘substantially jeopardized the safety and soundness of a financial institution’ if, as a consequence of the offense, the institution became insolvent; substantially reduced benefits to pensioners or insureds; was unable on demand to refund fully any deposit, payment, or investment; was so depleted of its assets as to be forced to merge with another institution in order to continue active operations; or was placed in substantial jeopardy of any of the above.

5. ‘The defendant derived more than $1,000,000 in gross receipts from the offense,’ as used in subsection (b)(2)(B), generally means that the gross receipts to the defendant individually, rather than to all participants, exceeded $1,000,000. ‘Gross receipts from the offense’ includes all property, real or personal, tangible or intangible, which is obtained directly or indirectly as a result of such offense. See 18 U.S.C. § 982(a)(4).",

and inserting the following:

"4. Gross Receipts Enhancement under Subsection (b)(2)(A).—

(A) In General.—For purposes of subsection (b)(2)(A), the defendant shall be considered to have derived more than $1,000,000 in gross receipts if the gross receipts to the defendant individually, rather than to all participants, exceeded $1,000,000.

(B) Definition.—‘Gross receipts from the offense’ includes all property, real or personal, tangible or intangible, which is obtained directly or indirectly as a result of such offense. See 18 U.S.C. § 982(a)(4).

5. Enhancement for Substantially Jeopardizing the Safety and Soundness of a Financial Institution under Subsection (b)(2)(B).—For purposes of subsection (b)(2)(B), an offense shall be considered to have substantially jeopardized the safety and soundness of a financial institution if, as a consequence of the offense, the institution (A) became insolvent; (B) substantially reduced benefits to pensioners or insureds; (C) was unable on demand to refund fully any deposit, payment, or investment; (D) was so depleted of its assets as to be forced to merge with another institution in order to continue active operations; or (E) was placed in substantial jeopardy of any of subdivisions (A) through (D) of this note.".

The Commentary to §2D1.9 captioned "Statutory Provision" is amended by striking "(e)" and inserting "(d)".

Section 2D1.11(a) is amended by striking "below" and inserting "or (e), as appropriate".

Section 2D1.11(e) is amended in Note (A) of the Notes following the "CHEMICAL QUANTITY TABLE" by striking "of this guideline" and inserting "or (e) of this guideline, as appropriate".

The Commentary to §2D1.11 captioned "Statutory Provisions" is amended by striking "841(d)(1)" and inserting "841(c)(1)"; and by striking "(g)(1)" and inserting "(f)(1)".

The Commentary to §2D1.13 captioned "Statutory Provisions" is amended by striking "841(d)(3)" and inserting "841(c)(3)"; and by striking "(g)(1)" and inserting "(f)(1)".

The Commentary to §2N2.1 captioned "Application Notes" is amended in Note 2 by striking "theft, property destruction, or".

Section 2Q1.6(a)(3) is amended by inserting "or" after "(Aggravated Assault);".

Section 2T1.1(c) is amended in Note (D) of subdivision (1) by striking "subdivisions" and inserting "subdivision".

Amendment 568 (effective November 1, 1997) is repromulgated with the following changes:

Section 4B1.4(b)(3)(A) is amended to read as follows:

"(3) (A) 34, if the defendant used or possessed the firearm or ammunition in connection with either a crime of violence, as defined in §4B1.2(a), or a controlled substance offense, as defined in §4B1.2(b), or if the firearm possessed by the defendant was of a type described in 26 U.S.C. § 5845(a)*; or";

and §4B1.4(c)(2) is amended to read as follows:

"(2) Category VI, if the defendant used or possessed the firearm or ammunition in connection with either a crime of violence, as defined in §4B1.2(a), or a controlled substance offense, as defined in §4B1.2(b), or if the firearm possessed by the defendant was of a type described in 26 U.S.C. § 5845(a); or".

Section 5C1.1(c)(2) is amended by inserting an asterisk after "confinement".

Section 5C1.1(d)(2) is amended by inserting an asterisk after "confinement".

The Commentary to §5C1.1 captioned "Application Notes" is amended in the first sentence of subdivision (C) of Note 3 by inserting an asterisk after "confinement".

The Commentary to §5C1.1 captioned "Application Notes" is amended in the first sentence of subdivision (B) of Note 4 by inserting an asterisk after "confinement".

The Commentary to §5C1.1 captioned "Application Notes" is amended in the first sentence of Note 6 by inserting an asterisk after "confinement".

The Commentary to §5C1.1 captioned "Application Notes" is amended by inserting after Application Note 8 the following:

"*Note: Section 3583(d) of title 18, United States Code, provides that ‘[t]he court may order, as a further condition of supervised release...any condition set forth as a discretionary condition of probation in section 3563(b)(1) through (b)(10) and (b)(12) through (b)(20), and any other condition it considers to be appropriate.’ Subsection (b)(11) of section 3563 of title 18, United States Code, is explicitly excluded as a condition of supervised release. Before the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, the condition at 18 U.S.C. § 3563(b)(11) was intermittent confinement. The Act deleted 18 U.S.C. § 3563(b)(2), authorizing the payment of a fine as a condition of probation, and redesignated the remaining conditions of probation set forth in 18 U.S.C. § 3563(b); intermittent confinement is now set forth at subsection (b)(10), whereas subsection (b)(11) sets forth the condition of residency at a community corrections facility. It would appear that intermittent confinement now is authorized as a condition of supervised release and that community confinement now is not authorized as a condition of supervised release.

However, there is some question as to whether Congress intended this result. Although the Antiterrorism and Effective Death Penalty Act of 1996 redesignated the remaining paragraphs of section 3563(b), it failed to make the corresponding redesignations in 18 U.S.C. § 3583(d), regarding discretionary conditions of supervised release.".

Section 5D1.2(c) is amended by inserting "(Policy Statement)" before "If the".

Section 5D1.3 is amended by inserting an asterisk after "Confinement" in the heading of subsection (e)(1); and by inserting after subsection (e)(1) the following:

"*Note: Section 3583(d) of title 18, United States Code, provides that ‘[t]he court may order, as a further condition of supervised release...any condition set forth as a discretionary condition of probation in section 3563(b)(1) through (b)(10) and (b)(12) through (b)(20), and any other condition it considers to be appropriate.’ Subsection (b)(11) of section 3563 of title 18, United States Code, is explicitly excluded as a condition of supervised release. Before the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, the condition at 18 U.S.C. § 3563(b)(11) was intermittent confinement. The Act deleted 18 U.S.C. § 3563(b)(2), authorizing the payment of a fine as a condition of probation, and redesignated the remaining conditions of probation set forth in 18 U.S.C. § 3563(b); intermittent confinement is now set forth at subsection (b)(10), whereas subsection (b)(11) sets forth the condition of residency at a community corrections facility. It would appear that intermittent confinement now is authorized as a condition of supervised release and that community confinement now is not authorized as a condition of supervised release.

However, there is some question as to whether Congress intended this result. Although the Antiterrorism and Effective Death Penalty Act of 1996 redesignated the remaining paragraphs of section 3563(b), it failed to make the corresponding redesignations in 18 U.S.C. § 3583(d), regarding discretionary conditions of supervised release.".

The Commentary to §5E1.2 captioned "Application Notes" is amended in Note 5 by inserting "and" before "42 U.S.C. § 6928(d)"; and by striking "; and 42 U.S.C. § 7413(c), which authorizes a fine of up to $25,000 per day for violations of the Clean Air Act".

Section 5F1.1 is amended by striking "release." and inserting the following:

"release.*

*Note: Section 3583(d) of title 18, United States Code, provides that ‘[t]he court may order, as a further condition of supervised release...any condition set forth as a discretionary condition of probation in section 3563(b)(1) through (b)(10) and (b)(12) through (b)(20), and any other condition it considers to be appropriate.’ Subsection (b)(11) of section 3563 of title 18, United States Code, is explicitly excluded as a condition of supervised release. Before the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, the condition at 18 U.S.C. § 3563(b)(11) was intermittent confinement. The Act deleted 18 U.S.C. § 3563(b)(2), authorizing the payment of a fine as a condition of probation, and redesignated the remaining conditions of probation set forth in 18 U.S.C. § 3563(b); intermittent confinement is now set forth at subsection (b)(10), whereas subsection (b)(11) sets forth the condition of residency at a community corrections facility. It would appear that intermittent confinement now is authorized as a condition of supervised release and that community confinement now is not authorized as a condition of supervised release.

However, there is some question as to whether Congress intended this result. Although the Antiterrorism and Effective Death Penalty Act of 1996 redesignated the remaining paragraphs of section 3563(b), it failed to make the corresponding redesignations in 18 U.S.C. § 3583(d), regarding discretionary conditions of supervised release.".

The Commentary to §5F1.5 captioned "Background" is amended in the first paragraph by striking "(b)(6)" each place it appears and inserting "(b)(5)".

The Commentary to §5F1.5 captioned "Background" is amended by striking the last paragraph as follows:

" The appellate review provisions permit a defendant to challenge the imposition of a probation condition under 18 U.S.C. § 3563(b)(6) if ‘the sentence includes . . . a more limiting condition of probation or supervised release under section 3563(b)(6) . . . than the maximum established in the guideline.’ 18 U.S.C. § 3742(a)(3)(A). The government may appeal if the sentence includes a ‘less limiting’ condition of probation than the minimum established in the guideline. 18 U.S.C. § 3742(b)(3)(A).",

and inserting the following:

" The appellate review provisions permit a defendant to challenge the imposition of a probation condition under 18 U.S.C. § 3563(b)(5) if the sentence includes a more limiting condition of probation or supervised release than the maximum established in the guideline. See 18 U.S.C. § 3742(a)(3). The government may appeal if the sentence includes a less limiting condition of probation than the minimum established in the guideline. See 18 U.S.C. § 3742(b)(3).".

The Commentary to §5F1.7 is amended in the first paragraph by inserting "Background:" before "Section 4046"; and by striking "Title" and inserting "title".

Chapter Seven, Part A, Subpart 2 is amended in the second paragraph of subdivision (b) by striking "intermittent confinement," and inserting "residency in, or participation in the program of, a community corrections facility,*"; and by inserting after subdivision (b) the following:

*Note: Section 3583(d) of title 18, United States Code, provides that ‘[t]he court may order, as a further condition of supervised release...any condition set forth as a discretionary condition of probation in section 3563(b)(1) through (b)(10) and (b)(12) through (b)(20), and any other condition it considers to be appropriate.’ Subsection (b)(11) of section 3563 of title 18, United States Code, is explicitly excluded as a condition of supervised release. Before the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, the condition at 18 U.S.C. § 3563(b)(11) was intermittent confinement. The Act deleted 18 U.S.C. § 3563(b)(2), authorizing the payment of a fine as a condition of probation, and redesignated the remaining conditions of probation set forth in 18 U.S.C. § 3563(b); intermittent confinement is now set forth at subsection (b)(10), whereas subsection (b)(11) sets forth the condition of residency at a community corrections facility. It would appear that intermittent confinement now is authorized as a condition of supervised release and that community confinement now is not authorized as a condition of supervised release.

However, there is some question as to whether Congress intended this result. Although the Antiterrorism and Effective Death Penalty Act of 1996 redesignated the remaining paragraphs of section 3563(b), it failed to make the corresponding redesignations in 18 U.S.C. § 3583(d), regarding discretionary conditions of supervised release.".

The Commentary to §7B1.3 captioned "Application Notes" is amended in Note 5 by striking "(11). Intermittent confinement is not authorized as a condition of supervised release. 18 U.S.C. § 3583(d)." and inserting the following:

"(10).*

*Note: Section 3583(d) of title 18, United States Code, provides that ‘[t]he court may order, as a further condition of supervised release...any condition set forth as a discretionary condition of probation in section 3563(b)(1) through (b)(10) and (b)(12) through (b)(20), and any other condition it considers to be appropriate.’ Subsection (b)(11) of section 3563 of title 18, United States Code, is explicitly excluded as a condition of supervised release. Before the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, the condition at 18 U.S.C. § 3563(b)(11) was intermittent confinement. The Act deleted 18 U.S.C. § 3563(b)(2), authorizing the payment of a fine as a condition of probation, and redesignated the remaining conditions of probation set forth in 18 U.S.C. § 3563(b); intermittent confinement is now set forth at subsection (b)(10), whereas subsection (b)(11) sets forth the condition of residency at a community corrections facility. It would appear that intermittent confinement now is authorized as a condition of supervised release and that community confinement now is not authorized as a condition of supervised release.

However, there is some question as to whether Congress intended this result. Although the Antiterrorism and Effective Death Penalty Act of 1996 redesignated the remaining paragraphs of section 3563(b), it failed to make the corresponding redesignations in 18 U.S.C. § 3583(d), regarding discretionary conditions of supervised release.".

Appendix A (Statutory Index) is amended by inserting after the line referenced to 16 U.S.C. § 1417(a)(5),(6),(b)(2) the following new line:

"16 U.S.C. § 1437(c)           2A2.4";

by inserting after the line referenced to 18 U.S.C. § 2244 the following new line:

"18 U.S.C. § 2245               2A1.1";

in the line referenced to 21 U.S.C. § 841(d)(1),(2) by striking "(d)" and inserting "(c)";

in the line referenced to 21 U.S.C. § 841(d)(3) by striking "(d)" and inserting "(c)";

in the line referenced to 21 U.S.C. § 841(e) by striking "(e)" and inserting "(d)";

in the line referenced to 21 U.S.C. § 841(g)(1) by striking "(g)" and inserting "(f)";

by inserting after the line referenced to 42 U.S.C. § 5157(a) the following new line:

"42 U.S.C. § 5409               2N2.1"; and

by inserting after the line referenced to 42 U.S.C. § 9603(d) the following new line:

"42 U.S.C. § 14905             2B1.1".

Reason for Amendment: This thirteen-part amendment makes several technical and conforming changes to various guideline provisions.

First, the amendment conforms the language concerning offenses that "affected a financial institution" in subsection (b)(2) of §2B4.1 (Bribery in Procurement of Bank Loan and Other Commercial Bribery) with subsection (b)(12) of §2B1.1 (Theft, Property Destruction, and Fraud).

Second, the amendment: (1) updates statutory references in §§2D1.9 (Placing or Maintaining Dangerous Devices on Federal Property to Protect the Unlawful Production of Controlled Substances; Attempt or Conspiracy), 2D1.11 (Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt or Conspiracy), and 2D1.13 (Structuring Chemical Transactions or Creating a Chemical Mixture to Evade Reporting or Recordkeeping Requirements; Presenting False or Fraudulent Identification to Obtain a Listed Chemical; Attempt or Conspiracy) and Appendix A (Statutory Index) to correspond to statutory redesignations made by the Hillory J. Farias and Samantha Reid Date-Rape Drug Prohibition Act of 2000, Pub. L. 106–172; and (2) corrects references to the new chemical quantity tables in §2D1.11.

Third, the amendment corrects a change to the commentary of §2N2.1 (Violations of Statutes and Regulations Dealing With Any Food, Drug, Biological Product, Device, Cosmetic, or Agricultural Product) that was inadvertently made as part of the conforming package of amendments in the Economic Crime Package (see Supplement to Appendix C, Amendment 617, effective November 1, 2001).

Fourth, the amendment inserts a missing "or" in subsection (a)(3) of §2Q1.6 (Hazardous or Injurious Devices on Federal Lands).

Fifth, the amendment corrects a grammatical error in Note (D) of subsection (c)(1) of §2T1.1 (Tax Evasion; Willful Failure to File Return, Supply Information, or Pay Tax; Fraudulent or False Returns, Statements, or Other Documents) by replacing "subdivisions (A), (B), or (C)" with "subdivision (A), (B), or (C)".

Sixth, the amendment repromulgates amendment 568, effective November 1, 1997, to correct an inadvertent omission of a conforming amendment to §4B1.4 (Armed Career Criminal) from amendment 568.

Seventh, the amendment conforms §§5C1.1 (Imposition of a Term of Imprisonment), 5D1.3 (Conditions of Supervised Release), and 5F1.1 (Community Confinement), Part A of Chapter Seven (Violations of Probation and Supervised Release), and §7B1.3 (Revocation of Probation or Supervised Release) to current statutory provisions at 18 U.S.C. §§ 3563 and 3583 and provides an explanatory note concerning the status of intermittent confinement and community confinement as conditions of supervised release.

Eighth, the amendment clarifies that language in subsection (c) of §5D1.2 (Term of Supervised Release) is a policy statement (because it recommends the maximum term of supervised release for sex offenders rather than requires it).

Ninth, the amendment deletes from Application Note 5 of §5E1.2 (Fines for Individual Defendants) an incorrect statement concerning the Clean Air Act.

Tenth, the amendment updates statutory references in §5F1.5 (Occupational Restrictions).

Eleventh, the amendment inserts a missing "Background" heading in §5F1.7 (Shock Incarceration Program).

Twelfth, the amendment references 18 U.S.C. § 2245, which covers sexual abuse resulting in death, to §2A1.1 (First Degree Murder) in Appendix A (Statutory Index) because the offense requires the death of a person.

Finally, the amendment responds to new legislation as follows:

(1) It updates, in §2B1.1, a statutory reference in the definition of "means of identification" to correspond to a redesignation made by the Internet False Identification Prevention Act of 2000, Pub. L. 106–578.

(2) It provides guideline references in Appendix A for two new offenses created by the American Homeownership and Economic Opportunity Act of 2000, Pub. L. 106–569 ("the Act"). First, section 608 of the Act amends section 610(a) of the National Manufactured Housing Construction and Safety Standards Act of 1974 (42 U.S.C. § 5409(a)) which makes it unlawful to fail to comply with a state’s installation program. Under section 611 of the National Housing Construction and Safety Standard Act of 1974 (42 U.S.C.§ 5410(b)), knowing and willful violations of subsection 610(a) are punishable by imprisonment of not more than one year. The amendment references this provision to §2N2.1. Second, section 708 of the Act created section 543 in Title V of the Housing Act of 1949 (42 U.S.C. § 1490(s)(a)), which provides a criminal penalty of not more than five years’ imprisonment for equity skimming. The amendment references this provision to §2B1.1.

(3) It references offenses under section 307(c) of the National Marine Sanctuaries Act (16 U.S.C. § 1437(c)) to §2A2.4 (Obstructing or Impeding Officers). Section 307(c) of the National Marine Sanctuaries Act, as amended by the National Marine Sanctuaries Amendments Act of 2000, Pub. L. 106–513, prohibits the interference with the enforcement of conservation activities authorized in title 16, United States Code, including refusing to permit any officer authorized to enforce such title to board a vessel for purposes of conducting a search or inspection in connection with the enforcement of such title.

Effective Date: The effective date of this amendment is November 1, 2002.