AMENDMENT 409

Amendment: Section 2T1.6 is amended by inserting the following additional subsection:

"(b) Cross Reference

(1) Where the offense involved embezzlement by withholding tax from an employee’s earnings and willfully failing to account to the employee for it, apply §2B1.1 (Larceny, Embezzlement, and Other Forms of Theft) if the resulting offense level is greater than that determined above.".

The Commentary to §2T1.6 captioned "Application Note" is amended in Note 1 by deleting "In such instances, an upward departure may be warranted" and inserting in lieu thereof "Subsection (b)(1) addresses such cases".

Reason for Amendment: This amendment replaces the recommendation in the commentary of this guideline concerning consideration of an upward departure where the court finds that the offense involved embezzlement of an employee’s funds with a cross reference that provides for the application of §2B1.1 (Larceny, Embezzlement, and Other Forms of Theft) in such cases where that guideline results in the greater offense level.

Effective Date: The effective date of this amendment is November 1, 1991.