AMENDMENT 670
Amendment: Chapter Two, Part K, Subpart 2, is amended by adding at the end the following new guideline and accompanying commentary:
"§2K2.6. Possessing, Purchasing, or Owning Body Armor by Violent Felons
(a) Base Offense Level: 10
(b) Specific Offense Characteristic
(1) If the defendant used the body armor in connection with another felony offense, increase by 4 levels.
Commentary
Statutory Provision: 18 U.S.C. § 931.
Application Notes:
1. Application of Subsection (b)(1).—
(A) Meaning of ‘Defendant’.—Consistent with §1B1.3 (Relevant Conduct), the term ‘defendant’, for purposes of subsection (b)(1), limits the accountability of the defendant to the defendant’s own conduct and conduct that the defendant aided or abetted, counseled, commanded, induced, procured, or willfully caused.
(B) Meaning of ‘Felony Offense’.—For purposes of subsection (b)(1), ‘felony offense’ means any offense (federal, state, or local) punishable by imprisonment for a term exceeding one year, regardless of whether a criminal charge was brought, or a conviction obtained.
(C) Meaning of ‘Used’.—For purposes of subsection (b)(1), ‘used’ means the body armor was (i) actively employed in a manner to protect the person from gunfire; or (ii) used as a means of bartering. Subsection (b)(1) does not apply if the body armor was merely possessed. For example, subsection (b)(1) would not apply if the body armor was found in the trunk of a car but was not being actively used as protection.
2. Inapplicability of §3B1.5.—If subsection (b)(1) applies, do not apply the adjustment in §3B1.5 (Use of Body Armor in Drug Trafficking Crimes and Crimes of Violence).
3. Grouping of Multiple Counts.—If subsection (b)(1) applies (because the defendant used the body armor in connection with another felony offense) and the instant offense of conviction includes a count of conviction for that other felony offense, the counts of conviction for the 18 U.S.C. § 931 offense and that other felony offense shall be grouped pursuant to subsection (c) of §3D1.2 (Groups of Closely Related Counts).".
The Commentary to §3B1.5 captioned "Application Notes" is amended by adding at the end the following:
"3. Interaction with §2K2.6 and Other Counts of Conviction.—If the defendant is convicted only of 18 U.S.C. § 931 and receives an enhancement under subsection (b)(1) of §2K2.6 (Possessing, Purchasing, or Owning Body Armor by Violent Felons), do not apply an adjustment under this guideline. However, if, in addition to the count of conviction under 18 U.S.C. § 931, the defendant (A) is convicted of an offense that is a drug trafficking crime or a crime of violence; and (B) used the body armor with respect to that offense, an adjustment under this guideline shall apply with respect to that offense.".
Reason for Amendment: This amendment addresses the new offense at 18 U.S.C. § 931, which was created by section 11009 of the 21st Century Department of Justice Appropriations Authorization Act, Pub. L. 107–273. Section 931 of title 18, United States Code, prohibits the purchase, ownership, or possession of body armor by individuals who have been convicted of either a federal or state felony that is a crime of violence. The statutory maximum term of imprisonment for 18 U.S.C. § 931 is three years.
This amendment creates a new guideline at §2K2.6 (Possessing, Purchasing, or Owning Body Armor by Violent Felons) because there is no guideline that covers conduct sufficiently analogous to the conduct constituting a violation of 18 U.S.C. § 931.
The new guideline provides a base offense level of 10 because 18 U.S.C. § 931 offenses have lesser statutory maximum punishments than offenses involving weapon possession and trafficking. Those offenses, which are sentenced at §2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition), have a base offense level of 12 if there is no aggravating circumstance present in the case.
The new guideline provides a four-level increase at §2K2.6(b)(1) "[i]f the defendant used the body armor in connection with another felony offense" because violations in which the body armor was used in connection with another felony offense are more serious than those involving only possession, purchase, or ownership of body armor. "Felony offense" is defined as "any offense (federal, state, or local) punishable by imprisonment for a term exceeding one year" and does not require that a charge be brought or a conviction sustained.
The commentary also provides guidance for the scope of the terms "defendant" and "used" for purposes of §2K2.6(b)(1). Use of the term "defendant" limits the accountability of the defendant to the defendant’s own conduct and conduct that the defendant aided or abetted, counseled, commanded, induced, procured, or willfully caused. The term "used" requires that the body armor be actively used in order to protect from gunfire or be used as a means of bartering. Finally, the commentary provides that when subsection (b)(1) applies and the defendant also is convicted of the underlying offense (the offense with respect to which the body armor was used), the counts shall be grouped pursuant to subsection (c) of §3D1.2 (Groups of Closely Related Counts).
Section 3B1.5 (Use of Body Armor in Drug Trafficking Crimes and Crimes of Violence) has been amended so that the adjustment in that guideline does not apply with respect to the 18 U.S.C. § 931 offense. However, if the defendant is convicted of the offense with respect to which the body armor was used, §3B1.5 will apply to that offense.
Effective Date: The effective date of this amendment is November 1, 2004.