AMENDMENT 429

Amendment: The Commentary to §1B1.5 captioned "Application Note" is amended in Note 1 by deleting "2D1.2(a)(1), 2H1.2(a)(2)" and inserting in lieu thereof "2D1.2(a)(1), (2), and 2H1.1(a)(2)"; by deleting "§§2A4.1(b)(5)(B), 2Q1.2(b)(5)" and inserting in lieu thereof "§2A4.1(b)(7)"; and by inserting the following additional paragraph:

"A reference may also be to a specific subsection of another guideline; e.g., the reference in §2D1.10(a)(1) to ‘3 plus the offense level from the Drug Quantity Table in §2D1.1’. In such case, only the specific subsection of that other guideline is used.".

The Commentary to §1B1.5 captioned "Application Note" is amended by inserting the following additional notes:

"2. A reference may require that the offense level be determined under another offense guideline. In such case, the adjustments in Chapter Three, Parts A (Victim-Related Adjustments), B (Role in the Offense), and E (Acceptance of Responsibility) are also to be determined in respect to that other offense guideline. For example, a defendant convicted of possession of a firearm by a felon, to which §2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition) applies, is found to have used that firearm in the commission of a robbery. The cross reference at §2K2.1(c) directs that the robbery offense guideline be used. The adjustments in Chapter Three, Parts A, B and E are to be applied as if the offense of conviction had directly referenced the robbery guideline.

3. A reference to another guideline may direct that such reference is to be used only if it results in a greater offense level. In such cases, the greater offense level means the greater final offense level (i.e., the greater offense level taking into account both the Chapter Two offense level and any applicable Chapter Three adjustments). Although the offense guideline that results in the greater offense level under Chapter Two will most frequently result in the greater final offense level, this will not always be the case. If, for example, a role or abuse of trust adjustment applies to the cross-referenced offense guideline, but not to the guideline initially applied, the greater Chapter Two offense level may not necessarily result in a greater final offense level.

4. A reference may direct that, if the conduct involved another offense, the offense guideline for such other offense is to be applied. Where there is more than one such other offense, the most serious such offense (or group of closely-related offenses in the case of offenses that would be grouped together under §3D1.2(d)) is to be used. For example, if a defendant convicted of possession of a firearm by a felon, to which §2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition) applies, is found to have possessed that firearm during commission of a series of offenses, the cross reference at §2K2.1(c) is applied to the offense resulting in the greatest offense level.";

and in the caption by deleting "Note" and inserting in lieu thereof "Notes".

Reason for Amendment: This amendment clarifies the operation of this guideline.

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