AMENDMENT 453
Amendment: The Introductory Commentary to Chapter Two, Part T, Subpart 3, is amended by deleting "This part" and inserting in lieu thereof "This Subpart"; by deleting:
". These guidelines are primarily aimed at revenue collection or trade regulation. They are",
and inserting in lieu thereof:
", and is designed to address violations involving revenue collection or trade regulation. It is";
by deleting "legislation generally applies" and inserting in lieu thereof "criminal statutes apply"; and by deleting:
"or for imposing a sentence above that specified in these guidelines",
and inserting in lieu thereof:
"if applicable, or for imposing a sentence above that specified in the guideline in this Subpart".
Section 2T3.1 is amended in the title by inserting at the end "; Receiving or Trafficking in Smuggled Property".
Section 2T3.1 is amended by inserting the following additional subsection:
"(c) Cross Reference
(1) If the offense involves a contraband item covered by another offense guideline, apply that offense guideline if the resulting offense level is greater than that determined above.".
The Commentary to §2T3.1 captioned "Application Notes" is amended in the third sentence of Note 2 by deleting "the court should impose a sentence above the guideline" and inserting in lieu thereof "an upward departure may be warranted".
Section 2T3.2, including accompanying commentary, is deleted as follows:
"§2T3.2. Receiving or Trafficking in Smuggled Property
(a) Base Offense Level:
(1) The level from §2T4.1 (Tax Table) corresponding to the tax loss, if the tax loss exceeded $1,000; or
(2) 5, if the tax loss exceeded $100 but did not exceed $1,000; or
(3) 4, if the tax loss did not exceed $100.
For purposes of this guideline, the ‘tax loss’ is the amount of the duty.
(b) Specific Offense Characteristic
(1) If sophisticated means were used to impede discovery of the nature or existence of the offense, increase by 2 levels.
Commentary
Statutory Provision: 18 U.S.C. § 545. For additional statutory provision(s), see Appendix A (Statutory Index).
Application Note:
1. Particular attention should be given to those items for which entry is prohibited, limited, or restricted. Especially when such items are harmful or protective quotas are in effect, the duties evaded on such items may not adequately reflect the harm to society or protected industries resulting from their importation. In such instances, the court should impose a sentence above the guideline. A sentence based upon an alternative measure of the ‘duty’ evaded, such as the increase in market value due to importation, or 25 percent of the items’ fair market value in the United States if the increase in market value due to importation is not readily ascertainable, might be considered.".
Section 8C2.1(a) is amended by deleting ", 2T3.2" immediately following "2T3.1".
Reason for Amendment: This amendment inserts a cross reference in §2T3.1 to cover cases more appropriately addressed by other offense guidelines. Previously, a similar instruction was set forth in the Introductory Commentary to this part. In addition, this amendment consolidates §§2T3.1 and 2T3.2 into one guideline as each contains the same offense levels and adjustments.
Effective Date: The effective date of this amendment is November 1, 1992.