AMENDMENT 735

Amendment: Section 2B5.3(b)(5) is amended by inserting "death or" after "risk of"; and by striking "13" and inserting "14" each place it appears.

Reason for Amendment: This amendment responds to the Prioritizing Resources and Organization for Intellectual Property Act of 2008, Pub. L. 110–403, which added two sentencing enhancements to violations of 18 U.S.C. § 2320 (Trafficking in counterfeit goods or services). Under those sentencing enhancements, if the offender causes or attempts to cause serious bodily injury, the statutory maximum term of imprisonment is increased from 10 years to 20 years; if the offender causes or attempts to cause death, the statutory maximum is increased to any term of years (or to life).

The amendment amends §2B5.3 (Criminal Infringement of Copyright or Trademark) at subsection (b)(5) to clarify that the enhancement in that subsection, which applies when the offense involved the risk of serious bodily injury, also applies when the offense involved the risk of death. This brings the language of that enhancement back into parallel with the corresponding enhancement in subsection (b)(13) of §2B1.1 (Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving Stolen Property; Property Damage or Destruction; Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States). The Commission envisioned, when it added the enhancement to §2B5.3, that paralleling the fraud guideline would promote proportionality. See Appendix C to the Guidelines Manual, Amendment 590 ("The Commission determined that this kind of aggravating conduct in connection with infringement cases should be treated under the guidelines in the same way it is treated in connection with fraud cases; therefore, this enhancement is consistent with an identical provision in the fraud guideline."). Accordingly, the amendment also increases the minimum offense level in §2B5.3(b)(5) from level 13 to level 14, bringing it back into parallel with the minimum offense level in §2B1.1(b)(13).

Effective Date: The effective date of this amendment is November 1, 2009.