373


AMENDMENT 373

Amendment: Chapter Two, Part K, Subpart 1 is amended by deleting §§2K1.3 and 2K1.6 in their entirety as follows:

"§2K1.3. Unlawfully Trafficking In, Receiving, or Transporting Explosives

(a) Base Offense Level: 6

(b) Specific Offense Characteristics

If more than one applies, use the greatest:

(1) If the defendant"s conduct involved any written or oral false or fictitious statement, false record, or misrepresented identification, increase by 4 levels.

(2) If the offense involved explosives that the defendant knew or had reason to believe were stolen, increase by 6 levels.

(3) If the defendant knowingly distributed explosives to a person under twenty-one years of age, to a person prohibited by state law or ordinance from receiving such explosives at the place of distribution, or to a person the defendant had reason to believe intended to transport such materials into a state in violation of the law of that state, increase by 4 levels.

(4) If the defendant was a person prohibited from receiving explosives under 18 U.S.C. § 842(i), or if the defendant knowingly distributed explosives to a person prohibited from receiving explosives under 18 U.S.C. § 842(i), increase by 10 levels.

(5) If a recordkeeping offense reflected an effort to conceal a substantive offense involving explosives, apply the guideline for the substantive offense.

Commentary

Statutory Provisions: 18 U.S.C. §§ 842(a), (h), (i), 844(b). For additional statutory provision(s), see Appendix A (Statutory Index).

Application Note:

1. ‘A person prohibited from receiving explosives under 18 U.S.C. § 842(i)’ is anyone who is under indictment for or has been convicted of a crime punishable by imprisonment for more than one year; who is a fugitive from justice; who is an unlawful user of or addicted to marihuana, any depressant or stimulant or narcotic drug; or who has been adjudicated as a mental defective or has been committed to a mental institution.

Background: This section applies to conduct ranging from violations of a regulatory nature pertaining to licensees or persons otherwise lawfully involved in explosives commerce to more serious violations that involve substantial danger to public safety.",

"§2K1.6. Shipping, Transporting, or Receiving Explosives with Felonious Intent or Knowledge; Using or Carrying Explosives in Certain Crimes

(a) Base Offense Level (Apply the greatest):

(1) 18; or

(2) If the defendant committed the offense with intent to commit another offense against a person or property, apply §2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to such other offense; or

(3) If death resulted, apply the most analogous guideline from Chapter Two, Part A, Subpart 1 (Homicide).

Commentary

Statutory Provisions: 18 U.S.C. § 844(d); 26 U.S.C. § 5685. For additional statutory provision(s), see Appendix A (Statutory Index).".

A replacement guideline with accompanying commentary is inserted as §2K1.3 (Unlawful Receipt, Possession, or Transportation of Explosive Materials; Prohibited Transactions Involving Explosive Materials).

Chapter Two, Part K, Subpart 1 is amended by inserting an additional guideline with accompanying commentary as §2K1.6 (Licensee Recordkeeping Violations Involving Explosive Materials).

Reason for Amendment: This amendment consolidates two guidelines, and revises the offense levels and characteristics to more adequately reflect the seriousness of such offenses, including enhancements for defendants previously convicted of felony crimes of violence or controlled substance offenses. In addition, the amendment inserts an additional guideline to cover certain recordkeeping offenses.

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