637

AMENDMENT 637

Amendment: The Commentary to §2A1.1 captioned "Statutory Provisions" is amended by inserting ", 2332b(a)(1), 2340A" after "2118(c)(2)".

The Commentary to §2A1.2 captioned "Statutory Provision" is amended by striking "Provision" and inserting "Provisions"; by inserting "§" before "1111"; and by inserting ", 2332b(a)(1), 2340A" after "1111".

The Commentary to §2A1.3 captioned "Statutory Provision" is amended by striking "Provision" and inserting "Provisions"; by inserting "§" before "1112"; and by inserting ", 2332b(a)(1)" after "1112".

The Commentary to §2A1.4 captioned "Statutory Provision" is amended by striking "Provision" and inserting "Provisions"; by inserting "§" before "1112"; and by inserting ", 2332b(a)(1)" after "1112".

The Commentary to §2A2.1 captioned "Statutory Provisions" is amended by inserting ", 1993(a)(6)" after "1751(c)".

The Commentary to §2A2.2 captioned "Statutory Provisions" is amended by inserting ", 1993(a)(6), 2332b(a)(1), 2340A" after "1751(e)".

The Commentary to §2A4.1 captioned "Statutory Provisions" is amended by inserting ", 2340A" after "1751(b)".

Chapter Two, Part A is amended in the heading of Subpart 5 by adding at the end "AND OFFENSES AGAINST MASS TRANSPORTATION SYSTEMS".

Section 2A5.2 is amended in the heading by adding at the end "; Interference with Dispatch, Operation, or Maintenance of Mass Transportation Vehicle or Ferry".

Section 2A5.2(a)(1) is amended by striking "the aircraft and passengers; or" and inserting ": (A) an airport or an aircraft; or (B) a mass transportation facility, a mass transportation vehicle, or a ferry;".

Section 2A5.2(a)(2) is amended by striking "the aircraft and passengers; or" and inserting ": (A) an airport or an aircraft; or (B) a mass transportation facility, a mass transportation vehicle, or a ferry;".

Section 2A5.2 is amended by inserting after subsection (a) the following:

"(b) Specific Offense Characteristic

(1) If (A) subsection (a)(1) or (a)(2) applies; and (B)(i) a firearm was discharged, increase by 5 levels; (ii) a dangerous weapon was otherwise used, increase by 4 levels; or (iii) a dangerous weapon was brandished or its use was threatened, increase by 3 levels. If the resulting offense level is less than level 24, increase to level 24.

(1) If death resulted, apply the most analogous guideline from Chapter Two, Part A, Subpart 1 (Homicide), if the resulting offense level is greater than that determined above.

(2) If the offense involved possession of, or a threat to use (A) a nuclear weapon, nuclear material, or nuclear byproduct material; (B) a chemical weapon; (C) a biological agent, toxin, or delivery system; or (D) a weapon of mass destruction, apply §2M6.1 (Nuclear, Biological, and Chemical Weapons, and Other Weapons of Mass Destruction), if the resulting offense level is greater than that determined above.".

The Commentary to §2A5.2 captioned "Statutory Provisions" is amended by inserting "18 U.S.C. § 1993(a)(4), (5), (6), (b);" before "49 U.S.C. §§"; and by inserting "46503," after "46308,".

Section 2A5.2 is amended by striking the Commentary captioned "Background" as follows:

"Background: An adjustment is provided where the defendant intentionally or recklessly endangered the safety of the aircraft and passengers. The offense of carrying a weapon aboard an aircraft, which is proscribed by 49 U.S.C. § 46505, is covered in §2K1.5 (Possessing Dangerous Weapons or Materials While Boarding or Aboard an Aircraft).",

and inserting the following:

"Application Note:

1. Definitions.—For purposes of this guideline:

‘Biological agent’, ‘chemical weapon’, ‘nuclear byproduct material’, ‘nuclear material’, ‘toxin’, and ‘weapon of mass destruction’ have the meaning given those terms in Application Note 1 of the Commentary to §2M6.1 (Nuclear, Biological, and Chemical Weapons, and Other Weapons of Mass Destruction).

‘Brandished’, ‘dangerous weapon’, ‘firearm’, and ‘otherwise used’ have the meaning given those terms in Application Note 1 of the Commentary to §1B1.1 (Application Instructions).

‘Mass transportation’ has the meaning given that term in 18 U.S.C. § 1993(c)(5).".

Section 2A6.1 is amended by redesignating subsection (b)(4) as subsection (b)(5); by striking "and (3)" in subsection (b)(5), as redesignated by this amendment, and inserting "(3), and (4)"; and by inserting after subsection (b)(3) the following:

"(4) If the offense resulted in (A) substantial disruption of public, governmental, or business functions or services; or (B) a substantial expenditure of funds to clean up, decontaminate, or otherwise respond to the offense, increase by 4 levels.".

The Commentary to §2A6.1 captioned "Statutory Provisions" is amended by inserting "32(c), 35(b)," before "871"; by inserting ", 1993(a)(7), (8), 2332b(a)(2)" after "879"; and by inserting "; 49 U.S.C. § 46507" after "(C)-(E)".

The Commentary to §2A6.1 captioned "Application Notes" is amended by striking Note 1 as follows:

"1. The Commission recognizes that this offense includes a particularly wide range of conduct and that it is not possible to include all of the potentially relevant circumstances in the offense level. Factors not incorporated in the guideline may be considered by the court in determining whether a departure from the guidelines is warranted. See Chapter Five, Part K (Departures).";

and by redesignating Note 2 as Note 1.

The Commentary to §2A6.1 captioned "Application Notes" is amended in Note 1, as redesignated by this amendment, by inserting "Scope of Conduct to Be Considered.—" before "In determining"; and by striking the last two paragraphs as follows:

"For purposes of Chapter Three, Part D (Multiple Counts), multiple counts involving making a threatening or harassing communication to the same victim are grouped together under §3D1.2 (Groups of Closely Related Counts). Multiple counts involving different victims are not to be grouped under §3D1.2.

If the conduct involved substantially more than two threatening communications to the same victim or a prolonged period of making harassing communications to the same victim, an upward departure may be warranted.".

The Commentary to §2A6.1 captioned "Application Notes" is amended by adding at the end the following:

"2. Grouping.—For purposes of Chapter Three, Part D (Multiple Counts), multiple counts involving making a threatening or harassing communication to the same victim are grouped together under §3D1.2 (Groups of Closely Related Counts). Multiple counts involving different victims are not to be grouped under §3D1.2.

3. Departure Provisions.—

(A) In General.—The Commission recognizes that offenses covered by this guideline may include a particularly wide range of conduct and that it is not possible to include all of the potentially relevant circumstances in the offense level. Factors not incorporated in the guideline may be considered by the court in determining whether a departure from the guidelines is warranted. See Chapter Five, Part K (Departures).

(B) Multiple Threats or Victims.—If the offense involved substantially more than two threatening communications to the same victim or a prolonged period of making harassing communications to the same victim, or if the offense involved multiple victims, an upward departure may be warranted.".

Section 2B1.1 is amended by striking subsection (d) as follows:

"(d) Special Instruction

(1) If the defendant is convicted under 18 U.S.C. § 1030(a)(4) or (5), the minimum guideline sentence, notwithstanding any other adjustment, shall be six months’ imprisonment.".

The Commentary to §2B1.1 captioned "Statutory Provisions" is amended by inserting "1992, 1993(a)(1), (a)(4)," after "1832,"; by inserting ", 2332b(a)(1)" after "2317"; and by inserting ", 60123(b)" after "46317(a)".

The Commentary to §2B1.1 captioned "Background" is amended by striking the last paragraph as follows:

" Subsection (d) implements the instruction to the Commission in section 805(c) of Public Law 104–132.".

Section 2B2.3(b)(1) is amended by inserting "(A)" after "occurred"; by striking the comma after "government facility" and inserting "; (B) at"; and by striking ", or" after "energy facility" and inserting "; (C) on a vessel or aircraft of the United States; (D) in a secured area of an airport; or (E) at".

Section 2B2.3 is amended by inserting after subsection (b) the following:

"(c) Cross Reference

(1) If the offense was committed with the intent to commit a felony offense, apply §2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that felony offense, if the resulting offense level is greater than that determined above.".

The Commentary to §2B2.3 captioned "Statutory Provisions" is amended by inserting "§" before "1030"; and by inserting ", 1036" after "(a)(3)".

The Commentary to §2B2.3 captioned "Application Notes" is amended in Note 1 by striking "For purposes of this guideline—" and inserting the following:

"Definitions.—For purposes of this guideline:

‘Airport’ has the meaning given that term in section 47102 of title 49, United States Code.

‘Felony offense’ means any offense (federal, state, or local) punishable by imprisonment for a term exceeding one year, whether or not a criminal charge was brought or a conviction was obtained.".

Section 2K1.4(a)(1)(B) is amended by inserting ", an airport, an aircraft, a mass transportation facility, a mass transportation vehicle, or a ferry" after "dwelling".

Section 2K1.4(a)(2) is amended by striking "a dwelling; or (C) endangered a dwelling, or a structure other than a dwelling" and inserting "(i) a dwelling, or (ii) an airport, an aircraft, a mass transportation facility, a mass transportation vehicle, or a ferry; or (C) endangered (i) a dwelling, (ii) a structure other than a dwelling, or (iii) an aircraft, a mass transportation vehicle, or a ferry".

The Commentary to §2K1.4 captioned "Statutory Provisions" is amended by inserting "1992, 1993(a)(1), (a)(2), (a)(3), (b)," after "1855,"; and by inserting ", 2332a; 49 U.S.C. § 60123(b)" after "2275".

The Commentary to §2K1.4 captioned "Application Notes" is amended by striking Note 1 as follows:

"1. If bodily injury resulted, an upward departure may be warranted. See Chapter Five, Part K (Departures).",

and inserting the following:

"1. Definitions.—For purposes of this guideline:

‘Explosives’ includes any explosive, explosive material, or destructive device.

‘National cemetery’ means a cemetery (A) established under section 2400 of title 38, United States Code; or (B) under the jurisdiction of the Secretary of the Army, the Secretary of the Navy, the Secretary of the Air Force, or the Secretary of the Interior.

‘Mass transportation’ has the meaning given that term in 18 U.S.C. § 1993(c)(5).".

The Commentary to §2K1.4 captioned "Application Notes" is amended in Note 2 by inserting "Risk of Death or Serious Bodily Injury.—" before "Creating".

The Commentary to §2K1.4 captioned "Application Notes" is amended by striking Notes 3 and 4 as follows:

"3. ‘Explosives,’ as used in the title of this guideline, includes any explosive, explosive material, or destructive device.

4. ‘National cemetery’ means a cemetery (A) established under section 2400 of title 38, United States Code; or (B) under the jurisdiction of the Secretary of the Army, the Secretary of the Navy, the Secretary of the Air Force, or the Secretary of the Interior.",

and inserting the following:

"3. Upward Departure Provision.—If bodily injury resulted, an upward departure may be warranted. See Chapter Five, Part K (Departures).".

The Commentary to §2L1.2 captioned "Application Notes" is amended by inserting at the end of subdivision (B) of Note 1 the following:

"(vi) ‘Terrorism offense’ means any offense involving, or intending to promote, a ‘federal crime of terrorism’, as that term is defined in 18 U.S.C. § 2332b(g)(5).".

The Commentary to §2M2.1 captioned "Statutory Provisions" is amended by inserting "; 49 U.S.C. § 60123(b)" after "2284".

The Commentary to §2M2.3 captioned "Statutory Provisions" is amended by inserting "; 49 U.S.C. § 60123(b)" after "2284".

Chapter Two, Part M is amended in the heading of Subpart 5 by adding at the end ", AND PROVIDING MATERIAL SUPPORT TO DESIGNATED FOREIGN TERRORIST ORGANIZATIONS".

Section 2M5.1 is amended in the heading by adding at the end "; Financial Transactions with Countries Supporting International Terrorism".

Section 2M5.1(a)(1) is amended by inserting "(A)" after "26, if"; and by inserting "; or (B) the offense involved a financial transaction with a country supporting international terrorism" after "evaded".

The Commentary to §2M5.1 captioned "Statutory Provisions" is amended by inserting "18 U.S.C. § 2332d;" before "50 U.S.C.".

The Commentary to §2M5.1 captioned "Application Notes" is amended by adding at the end the following:

"4. For purposes of subsection (a)(1)(B), ‘a country supporting international terrorism’ means a country designated under section 6(j) of the Export Administration Act (50 U.S.C. App. 2405).".

Chapter Two, Part M, Subpart 5 is amended by adding at the end the following:

"§2M5.3. Providing Material Support or Resources to Designated Foreign Terrorist Organizations

(a) Base Offense Level: 26

(b) Specific Offense Characteristic

(1) If the offense involved the provision of (A) dangerous weapons; (B) firearms; (C) explosives; or (D) funds with knowledge or reason to believe such funds would be used to purchase any of the items described in subdivisions (A) through (C), increase by 2 levels.

(1) If the offense resulted in death, apply §2A1.1 (First Degree Murder) if the death was caused intentionally or knowingly, or §2A1.2 (Second Degree Murder) otherwise, if the resulting offense level is greater than that determined above.

(2) If the offense was tantamount to attempted murder, apply §2A2.1 (Assault with Intent to Commit Murder; Attempted Murder), if the resulting offense level is greater than that determined above.

(3) If the offense involved the provision of (A) a nuclear weapon, nuclear material, or nuclear byproduct material; (B) a chemical weapon; (C) a biological agent, toxin, or delivery system; or (D) a weapon of mass destruction, apply §2M6.1 (Nuclear, Biological, and Chemical Weapons, and Other Weapons of Mass Destruction), if the resulting offense level is greater than that determined above.

Commentary

Statutory Provision: 18 U.S.C. § 2339B.

Application Notes:

1. Definitions.—For purposes of this guideline:

‘Dangerous weapon’, ‘firearm’, and ‘destructive device’ have the meaning given those terms in Application Note 1 of the Commentary to §1B1.1 (Application Instructions).

‘Explosives’ has the meaning given that term in Application Note 1 of the Commentary to §2K1.4 (Arson; Property Damage by Use of Explosives).

‘Foreign terrorist organization’ has the meaning given the term "terrorist organization" in 18 U.S.C. § 2339B(g)(6).

‘Material support or resources’ has the meaning given that term in 18 U.S.C. § 2339B(g)(4).

2. Departure Provisions.—

(A) In General.—In determining the sentence within the applicable guideline range, the court may consider the degree to which the violation threatened a security interest of the United States, the volume of the material support or resources involved, the extent of planning or sophistication, and whether there were multiple occurrences. In a case in which such factors are present in an extreme form, a departure from the guidelines may be warranted. See Chapter Five, Part K (Departures).

(B) War or Armed Conflict.—In the case of a violation during time of war or armed conflict, an upward departure may be warranted.".

Section 2M6.1(a)(2) is amended by striking "and" and inserting a comma; by inserting ", (a)(4), and (a)(5)" after "(a)(3)"; and by striking "or".

Section 2M6.1(a) is amended by redesignating subdivision (3) as subdivision (5); by inserting after subdivision (2) the following:

"(3) 22, if the defendant is convicted under 18 U.S.C. § 175b;

(4) 20, if the defendant is convicted under 18 U.S.C. § 175(b); or";

and by striking "by-product" in subdivision (5), as redesignated by this amendment, and inserting "byproduct".

Section 2M6.1(b)(1) is amended by striking "or (a)(3)" and inserting ", (a)(4), or (a)(5)".

Section 2M6.1(b)(2) is amended by inserting ", (a)(3), or (a)(4)" after "(a)(2)".

Section 2M6.1(b)(3) is amended by striking "or" after "(a)(2)" and inserting a comma; and by inserting ", (a)(4), or (a)(5)" after "(a)(3)".

The Commentary to §2M6.1 captioned "Statutory Provisions" is amended by inserting "175b," after "175,"; and by inserting "1993(a)(2), (3), (b)," after "842(p)(2),".

The Commentary to §2M6.1 captioned "Application Notes" is amended in Note 1 by inserting after "18 U.S.C. § 831(f)(1)." the following paragraph:

"‘Restricted person’ has the meaning given that term in 18 U.S.C. § 175b(b)(2).".

Section 2S1.3 is amended in the heading by adding at the end "; Bulk Cash Smuggling; Establishing or Maintaining Prohibited Accounts".

Section 2S1.3 is amended by striking subsection (a) as follows:

"(a) Base Offense Level: 6 plus the number of offense levels from the table in §2B1.1 (Theft, Property Destruction, and Fraud) corresponding to the value of the funds.",

and inserting the following:

"(a) Base Offense Level:

(1) 8, if the defendant was convicted under 31 U.S.C. § 5318 or § 5318A; or

(2) 6 plus the number of offense levels from the table in §2B1.1 (Theft, Property Destruction, and Fraud) corresponding to the value of the funds, if subsection (a)(1) does not apply.".

Section 2S1.3(b)(1) is amended by inserting "(A)" after "If"; and by inserting "; or (B) the offense involved bulk cash smuggling" after "promote unlawful activity".

Section 2S1.3(b) is amended by redesignating subdivision (2) as subdivision (3); and by inserting after subdivision (1) the following:

"(2) If the defendant (A) was convicted of an offense under subchapter II of chapter 53 of title 31, United States Code; and (B) committed the offense as part of a pattern of unlawful activity involving more than $100,000 in a 12-month period, increase by 2 levels.".

Section 2S1.3(b)(3), as redesignated by this amendment, is amended by striking "subsection (b)(1) does not apply" and inserting "subsection (a)(2) applies and subsections (b)(1) and (b)(2) do not apply".

The Commentary to §2S1.3 captioned "Statutory Provisions" is amended by inserting "§" before "7203"; by striking "§" before "7206"; by inserting "5318, 5318A(b), 5322," after "5316,"; and by inserting ", 5331, 5332" after "5326".

The Commentary to §2S1.3 captioned "Application Note" is amended by striking "Note" and inserting "Notes"; by inserting "Definition of ‘Value of the Funds’.—" before "For purposes of this guideline" in Note 1; and by adding after Note 1 the following:

"2. Bulk Cash Smuggling.—For purposes of subsection (b)(1)(B), ‘bulk cash smuggling’ means (A) knowingly concealing, with the intent to evade a currency reporting requirement under 31 U.S.C. § 5316, more than $10,000 in currency or other monetary instruments; and (B) transporting or transferring (or attempting to transport or transfer) such currency or monetary instruments into or outside of the United States. ‘United States’ has the meaning given that term in Application Note 1 of the Commentary to §2B5.1 (Offenses Involving Counterfeit Bearer Obligations of the United States).

3. Enhancement for Pattern of Unlawful Activity.—For purposes of subsection (b)(2), ‘pattern of unlawful activity’ means at least two separate occasions of unlawful activity involving a total amount of more than $100,000 in a 12-month period, without regard to whether any such occasion occurred during the course of the offense or resulted in a conviction for the conduct that occurred on that occasion.".

The Commentary to §2S1.3 captioned "Background" is amended by striking "The" and inserting "Some of the"; and by adding at the end the following:

" This guideline also covers offenses under 31 U.S.C. §§ 5318 and 5318A, pertaining to records, reporting and identification requirements, prohibited accounts involving certain foreign jurisdictions, foreign institutions, and foreign banks, and other types of transactions and types of accounts.".

Section 2X1.1 is amended by adding after subsection (c) the following:

"(d) Special Instruction

(1) Subsection (b) shall not apply to any of the following offenses, if such offense involved, or was intended to promote, a federal crime of terrorism as defined in 18 U.S.C. § 2332b(g)(5):

18 U.S.C. § 81;

18 U.S.C. § 930(c);

18 U.S.C. § 1362;

18 U.S.C. § 1363;

18 U.S.C. § 1992;

18 U.S.C. § 2339A;

18 U.S.C. § 2340A;

49 U.S.C. § 46504;

49 U.S.C. § 46505; and

49 U.S.C. § 60123(b).".

The Commentary to §2X2.1 captioned "Statutory Provision" is amended by striking the following:

"Statutory Provision: 18 U.S.C. § 2.",

and inserting:

"Statutory Provisions: 18 U.S.C. §§ 2, 2339, 2339A.".

The Commentary to §2X2.1 captioned "Application Note" is amended in Note 1 by striking "‘Underlying" and inserting "Definition.—For purposes of this guideline, ‘underlying"; and by inserting ", or in the case of a violation of 18 U.S.C. § 2339A, ‘underlying offense’ means the offense the defendant is convicted of having materially supported prior to or during its commission" after "abetting".

Section 2X3.1(a) is amended by striking "Provided, that where" and inserting "However, in a case in which"; and by striking "offense level shall" and inserting "base offense level under this subsection shall".

The Commentary to §2X3.1 captioned "Statutory Provisions" is amended by inserting ", 2339, 2339A" after "1072".

The Commentary to §2X3.1 captioned "Application Notes" is amended in Note 1 by striking "‘Underlying" and inserting "Definition.—For purposes of this guideline, ‘underlying"; and by inserting ", or in the case of a violation of 18 U.S.C. § 2339A, ‘underlying offense’ means the offense the defendant is convicted of having materially supported after its commission (i.e., in connection with the concealment of or an escape from that offense)" after "accessory".

The Commentary to §2X3.1 captioned "Application Notes" is amended in Note 2 by inserting "Application of Mitigating Role Adjustment.—" before "The adjustment".

The Commentary to §3A1.4 captioned "Application Notes" is amended by striking Note 1 as follows:

"1. Subsection (a) increases the offense level if the offense involved, or was intended to promote, a federal crime of terrorism. ‘Federal crime of terrorism’ is defined at 18 U.S.C. § 2332b(g).",

and inserting the following:

"1. ‘Federal Crime of Terrorism’ Defined.—For purposes of this guideline, ‘federal crime of terrorism’ has the meaning given that term in 18 U.S.C. § 2332b(g)(5).".

The Commentary to §3A1.4 captioned "Application Notes" is amended by redesignating Note 2 as Note 3; and by inserting after Note 1 the following:

"2. Harboring, Concealing, and Obstruction Offenses.—For purposes of this guideline, an offense that involved (A) harboring or concealing a terrorist who committed a federal crime of terrorism (such as an offense under 18 U.S.C. § 2339 or § 2339A); or (B) obstructing an investigation of a federal crime of terrorism, shall be considered to have involved, or to have been intended to promote, that federal crime of terrorism.".

The Commentary to §3A1.4 captioned "Application Notes" is amended in Note 3, as redesignated by this amendment, by inserting "Computation of Criminal History Category.—" before "Under subsection (b)".

The Commentary to §3A1.4 captioned "Application Notes" is amended by adding at the end the following:

"4. Upward Departure Provision.—By the terms of the directive to the Commission in section 730 of the Antiterrorism and Effective Death Penalty Act of 1996, the adjustment provided by this guideline applies only to federal crimes of terrorism. However, there may be cases in which (A) the offense was calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct but the offense involved, or was intended to promote, an offense other than one of the offenses specifically enumerated in 18 U.S.C. § 2332b(g)(5)(B); or (B) the offense involved, or was intended to promote, one of the offenses specifically enumerated in 18 U.S.C. § 2332b(g)(5)(B), but the terrorist motive was to intimidate or coerce a civilian population, rather than to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct. In such cases an upward departure would be warranted, except that the sentence resulting from such a departure may not exceed the top of the guideline range that would have resulted if the adjustment under this guideline had been applied.".

The Commentary to §3C1.1 captioned "Application Notes" is amended in Note 4 by striking the period at the end of subdivision (i) and inserting a semicolon; and by inserting after subdivision (i) the following:

"(j) failing to comply with a restraining order or injunction issued pursuant to 21 U.S.C. § 853(e) or with an order to repatriate property issued pursuant to 21 U.S.C. § 853(p).".

Section 5D1.2(a) is amended by adding at the end the following:

"Notwithstanding subdivisions (1) through (3), the length of the term of supervised release for any offense listed in 18 U.S.C. § 2332b(g)(5)(B) the commission of which resulted in, or created a foreseeable risk of, death or serious bodily injury to another person (A) shall be not less than the minimum term of years specified for that class of offense under subdivisions (1) through (3); and (B) may be up to life.".

Appendix A (Statutory Index) is amended by inserting after the line referenced to 18 U.S.C. § 175 the following new line:

"18 U.S.C. § 175b 2M6.1";

by inserting after the line referenced to 18 U.S.C. § 1992 the following new lines:

"18 U.S.C. § 1993(a)(1) 2B1.1, 2K1.4

18 U.S.C. § 1993(a)(2) 2K1.4, 2M6.1

18 U.S.C. § 1993(a)(3) 2K1.4, 2M6.1

18 U.S.C. § 1993(a)(4) 2A5.2, 2B1.1

18 U.S.C. § 1993(a)(5) 2A5.2

18 U.S.C. § 1993(a)(6) 2A2.1, 2A2.2, 2A5.2

18 U.S.C. § 1993(a)(7) 2A6.1

18 U.S.C. § 1993(a)(8) 2A6.1

18 U.S.C. § 1993(b) 2 A5.2, 2K1.4, 2M6.1";

by inserting after the line referenced to 18 U.S.C. § 2332a the following new lines:

"18 U.S.C. § 2332b(a)(1) 2A1.1, 2A1.2, 2A1.3, 2A1.4, 2A2.1, 2A2.2, 2A4.1, 2B1.1

18 U.S.C. § 2332b(a)(2) 2A6.1

18 U.S.C. § 2332d 2M5.1

18 U.S.C. § 2339 2X2.1, 2X3.1

18 U.S.C. § 2339A 2X2.1, 2X3.1

18 U.S.C. § 2339B 2M5.3

18 U.S.C. § 2340A 2A1.1, 2A1.2, 2A2.1, 2A2.2, 2A4.1";

by inserting after the line referenced to 30 U.S.C. § 1463 the following new line:

"31 U.S.C. § 5311 note

(section 329 of the USA PATRIOT Act of 2001) 2C1.1";

by inserting after the line referenced to 31 U.S.C. § 5316 the following new lines:

"31 U.S.C. § 5318 2S1.3

31 U.S.C. § 5318A(b) 2S1.3";

by inserting after the line referenced to 31 U.S.C. § 5326 the following new lines:

"31 U.S.C. § 5331 2S1.3

31 U.S.C. § 5332 2S1.3";

by inserting after the line referenced to 49 U.S.C. § 46502(a),(b) the following new line:

"49 U.S.C. § 46503 2A5.2"; and

by inserting after the line referenced to 49 U.S.C. § 46506 the following new lines:

"49 U.S.C. § 46507 2A6.1

49 U.S.C. § 60123(b) 2B1.1, 2K1.4, 2M2.1, 2M2.3".

Reason for Amendment: This amendment is a six-part amendment that responds to the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act) Act of 2001, Pub. L. 107–56 (the "Act").

Among its many provisions are appropriately severe penalties for offenses against mass transportation systems and interstate gas or hazardous liquid pipelines. The amendment also increases sentences for threats that substantially disrupt governmental or business operations or result in costly cleanup measures. It expands the guideline coverage of offenses involving bioterrorism, and it creates a new guideline for providing material support to foreign terrorist organizations. It punishes attempts and conspiracies to commit terrorism as if the offense had been carried out and adds an invited upward departure to the guidelines’ terrorism enhancement for appropriate cases. Finally, it authorizes a term of supervised release up to life for a defendant convicted of a federal crime of terrorism that resulted in substantial risk of death or serious bodily injury to another person.

First, this amendment makes a number of changes to Appendix A (Statutory Index) and several guidelines in Chapter Two (Offense Conduct) in order to incorporate several new predicate offenses to federal crimes of terrorism. This amendment addresses section 801 of the Act, which added 18 U.S.C. § 1993, generally pertaining to offenses against mass transportation systems and facilities. The amendment also addresses 49 U.S.C. § 46507 pertaining to false information and threats, that heretofore was not listed in the Statutory Index, as well as the new offense at 49 U.S.C. § 46503, pertaining to interference with security screening personnel.

Specifically, the amendment makes a number of changes to §2A5.2 (Interference with Flight Crew Member or Flight Attendant) and the guidelines in Chapter Two, Part A, Subpart 2 (Assault). First, this amendment references violations of 18 U.S.C. § 1993(a)(4), (a)(5), (a)(6), and (b) and 49 U.S.C. § 46503 to §2A5.2 because that guideline presently covers other similar offenses and because the guideline’s alternative base offense levels cover offenses that involve reckless or intentional endangerment, conduct which is an element of some of these new offenses.

In order to take into account aggravating conduct which may occur in such offenses, the amendment adds a specific offense characteristic for use of a weapon, borrowing language from §2A2.2 (Aggravated Assault). The specific offense characteristic provides a graduated enhancement with a minimum offense level of level 24 at §2A5.2(b)(1) for the involvement of a dangerous weapon in the offense. This enhancement addresses concerns that the current base offense level of level 18 (in §2A5.2(a)(2)) for reckless endangerment may be inadequate in situations involving a dangerous weapon and reckless disregard for the safety of human life. The minimum offense level of level 24 mirrors the offense level that applies for conduct amounting to reckless endangerment under subsection (b)(1) of §2K1.5 (Possessing Dangerous Weapons or Materials While Boarding or Aboard an Aircraft). A cross reference to the appropriate homicide guideline also is provided for offenses in which death results; death as an aggravating circumstance is included in 18 U.S.C. § 1993(b).

The amendment also amends §2A6.1 (Threatening or Harassing Communications) to incorporate offenses against mass transportation systems under 18 U.S.C. § 1993(a)(7) and (a)(8) and 49 U.S.C. § 46507 and provides corresponding references in the Statutory Index. These three provisions require the same type of threatening conduct or conveyance of false information as two other offenses referenced to §2A6.1, specifically 18 U.S.C. §§ 32(c) and 35(b), which cover aircraft, railroads, and shipping, rather than mass transportation systems. Additionally, a specific offense characteristic is added if the offense resulted in a substantial disruption of public, governmental, or business functions or services, or a substantial expenditure of funds to clean up, decontaminate, or otherwise respond to the offense. This enhancement recognizes that a terrorist threat usually will be directed at a large number of individuals, governmental buildings or operations, or infrastructure. Unless such a terrorist threat is immediately dismissed as not credible, the conduct may result in significant disruption and response costs. This specific offense characteristic is the same as that contained in subsection (b)(3) of §2M6.1 (Nuclear, Biological, and Chemical Weapons, and Other Weapons of Mass Destruction). An invited upward departure provision is added for situations in which the offense involved multiple victims, a circumstance which might occur in the context of these new offenses.

This amendment also amends §2K1.4 (Arson; Property Damage by Use of Explosives) and §2B1.1 (Theft, Property Destruction, and Fraud) to cover violations of 18 U.S.C. § 1993(a)(1) and (b). Offenses under 18 U.S.C. § 1993(a)(1) are similar to another offense referenced to these guidelines, 18 U.S.C. § 32(a)(1), with respect to the intent standard required to commit the offense, offense conduct, and resulting harm. The amendment references violations of 18 U.S.C. § 1993(a)(2), (a)(3), and (b) to §§2K1.4 and 2M6.1. These offenses encompass a wide range of conduct. For example, a violation of 18 U.S.C. § 1993(a)(3) may occur if the defendant sets fire to a garage or places a biological agent or toxin for use as a destructive substance near an aircraft and this likely endangered the safety of that aircraft.

The amendment expands §2M6.1 to cover 18 U.S.C. §§ 175(b) and 175b, two new offenses created by section 817 of the Act, involving possession of biological agents, toxins, and delivery systems. Section 2M6.1 is the most appropriate guideline for these offenses because they involve the knowing possession of certain biological substances. A base offense level of level 20 is provided for 18 U.S.C. § 175(b) offenses, the same base offense level as is currently provided for threat cases under that guideline. The current two level increase for particularly dangerous biological agents would be available for the most serious substances.

A base offense level of level 22 is provided for offenses under 18 U.S.C. § 175b, which forbids certain restricted persons (defined in the statute) to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any biological agent or toxin, or to receive any biological agent or toxin that has been shipped or transported in interstate or foreign commerce, if the biological agent or toxin is listed as a select agent (e.g., ebola, anthrax). Because this offense already takes into account the serious nature of a select agent, the amendment treats these offenses separately from offenses under 18 U.S.C. § 175(b), with a higher base offense level and an instruction that the enhancement for select biological agents does not apply.

The amendment also amends the Statutory Index to reference 18 U.S.C. § 2339 to §§2X2.1 (Aiding and Abetting) and 2X3.1 (Accessory After the Fact). This offense prohibits harboring or concealing any person who the defendant knows, or has reasonable grounds to believe, has committed or is about to commit, one of several enumerated offenses.

Second, this amendment provides Statutory Index references, as well as modifications to various Chapter Two guidelines, for a number of offenses that, prior to enactment of the Act, were enumerated in 18 U.S.C. § 2332b(g)(5) as predicate offenses for federal crimes of terrorism but were not explicitly incorporated in the guidelines.

Specifically, the amendment references 18 U.S.C. § 2332b(a)(1) offenses to §§2A1.1 (First Degree Murder), 2A1.2 (Second Degree Murder), 2A1.3 (Voluntary Manslaughter), 2A1.4 (Involuntary Manslaughter), 2A2.1 (Assault with Intent to Commit Murder; Attempted Murder), 2A2.2 (Aggravated Assault), and 2A4.1 (Kidnapping, Abduction, Unlawful Restraint), inasmuch as 18 U.S.C. § 2332b offenses are analogous to offenses currently referenced to those guidelines.

The amendment also provides a Statutory Index reference to §2A6.1 (Threatening or Harassing Communications) for cases under 18 U.S.C. § 2332b(a)(2), which prohibits threats, attempts and conspiracies to commit an offense under 18 U.S.C. § 2332b(a)(1).

This amendment also creates a new guideline, at §2M5.3 (Providing Material Support or Resources to Designated Foreign Terrorist Organizations), for offenses under 18 U.S.C. § 2339B, which prohibits the provision of material support or resources to a foreign terrorist organization. The amendment references offenses under 18 U.S.C. § 2339A to §§2X2.1 and 2X3.1. Section 2339A offenses concern providing material support to terrorists that the defendant knows or intends will be used in preparation for, or in carrying out, certain specified predicate offenses. Thus, the essence of 18 U.S.C. § 2339A offenses is akin to aiding and abetting or accessory after the fact offenses, which warrants reference to §§2X2.1 and 2X3.1. In contrast, 18 U.S.C. § 2339B offenses are referenced to a new guideline, §2M5.3, primarily because they are not statutorily linked to the commission of any specified predicate offenses. To account for the variety of ways in which such offenses may be committed, the new guideline provides two specific offense characteristics that enhance the sentence for cases in which the material support involved dangerous weapons and in which the material support involved nuclear, biological, or chemical weapons.

The amendment references torture offenses under 18 U.S.C. § 2340A to §§2A1.1, 2A1.2, 2A2.1, 2A2.2, and 2A4.1. The amendment also references 49 U.S.C. § 60123(b), pertaining to damaging or destroying an interstate gas or hazardous liquid pipeline facility, to §§2B1.1, 2K1.4, 2M2.1 (Destruction of, or Production of Defective, War Material, Premises, or Utilities), and 2M2.3 (Destruction of, or Production of Defective, National Defense Material, Premises, or Utilities).

Third, the amendment responds to section 811 of the Act, which amended a number of offenses to ensure that attempts and conspiracies to commit any of those offenses subject the offender to the same penalties prescribed for the object offense. This amendment provides a special instruction in §2X1.1 (Attempt, Solicitation, or Conspiracy) that the three level reduction in §2X1.1(b) does not apply to these offenses when committed for a terrorist objective.

Fourth, the amendment adds an encouraged, structured upward departure in §3A1.4 (Terrorism) for offenses that involve terrorism but do not otherwise qualify as offenses that involved or were intended to promote "federal crimes of terrorism" for purposes of the terrorism adjustment in §3A1.4. The amendment provides an upward departure, rather than a specified guideline adjustment, because of the expected infrequency of these terrorism offenses and to provide the court with a viable tool to account for the harm involved during the commission of these offenses on a case-by-case basis. In addition, the structured upward departure provision makes it possible to impose punishment equal in severity to that which would be imposed if the §3A1.4 adjustment actually applied.

The amendment adds an application note to §3A1.4 regarding harboring and concealing offenses to clarify that §3A1.4 may apply in the case of offenses that occurred after the commission of the federal crime of terrorism (e.g., a case in which the defendant, in violation of 18 U.S.C. § 2339A, concealed an individual who had committed a federal crime of terrorism).

Fifth, the amendment amends §2S1.3 (Structuring Transactions to Evade Reporting Requirements; Failure to Report Cash or Monetary Transactions; Failure to File Currency and Monetary Instrument Report; Knowingly Filing False Reports) to incorporate new money laundering provisions created by the Act.

Specifically, the amendment provides an alternative base offense level of level 8 in §2S1.3(a) in order to incorporate offenses under 31 U.S.C. §§ 5318 and 5318A. The base offense level of level 8 recognizes the heightened due diligence requirements placed on financial institutions with respect to payable-through accounts, correspondent accounts, and shell banks.

The amendment also amends §2S1.3(b)(1), relating to the promotion of unlawful activity, to provide an alternative prong if the offense involved bulk cash smuggling. This amendment addresses 31 U.S.C. § 5332, added by section 371 of the Act, which prohibits concealing, with intent to evade a currency reporting requirement under 31 U.S.C. § 5316, more than $10,000 in currency or other monetary instruments and transporting or transferring such currency or monetary instruments into or outside of the United States. Findings set forth in that section of the Act indicate that bulk cash smuggling typically involves the promotion of unlawful activity.

The amendment also provides an enhancement in §2S1.3(b) to give effect to the enhanced penalty provisions under 31 U.S.C. § 5322(b) for offenses under subchapter II of chapter 53 of title 31, United Stated Code, if such offenses were committed as part of a pattern of unlawful activity involving more than $100,000 in a 12-month period.

Sixth, the amendment addresses a number of miscellaneous issues related to terrorism. Specifically, it provides a definition of terrorism for purposes of the prior conviction enhancement in §2L1.2 (Unlawfully Entering or Remaining in the United States). For consistency, the definition is the same as that found in the current Chapter Three terrorism adjustment.

It also amends §3C1.1 (Obstructing or Impeding the Administration of Justice), in response to section 319(d) of the Act, which amends the Controlled Substances Act at 21 U.S.C. § 853(e) to require a defendant to repatriate any property that may be seized and forfeited and to deposit that property in the registry of the court or with the United States Marshals Service or the Secretary of the Treasury. Section 319(d) of the Act also states that the failure to comply with a protective order and an order to repatriate property "may also result in an enhancement of the sentence of the defendant under the obstruction of justice provision of the Federal Sentencing Guidelines." Accordingly, the amendment adds Application Note 4(j) to §3C1.1 to provide that failure to comply with an order issued pursuant to 21 U.S.C. § 835(e) is an example of the types of conduct to which the adjustment applies.

It also amends §5D1.2 (Term of Supervised Release), in response to section 812 of the Act, which authorizes a term of supervised release of any term of years or life for a defendant convicted of a federal crime of terrorism the commission of which resulted in, or created a foreseeable risk of, death or serious bodily injury to another person.

It also amends §2B1.1 to delete the special instruction pertaining to the imposition of not less than six months’ imprisonment for a defendant convicted under 18 U.S.C. § 1030(a)(4) or (5). This amendment is in response to section 814(f) of the Act, which directed the Commission to amend the guidelines "to ensure that any individual convicted of a violation of section 1030 of title 18, United States Code, can be subjected to appropriate penalties, without regard to any mandatory minimum term of imprisonment."

It also adds a reference in the Statutory Index to §2C1.1 (Offering, Giving, Soliciting, or Receiving a Bribe; Extortion Under Color of Official Right), for the new offense created by section 329 of the Act, which prohibits a federal official or employee, in connection with administration of the money laundering provisions of the Act, to corruptly demand, seek, receive, accept, or agree to receive or accept anything of value in return for being influenced in the performance of an official act, being influenced to commit or aid in committing any fraud on the United States, or being induced to do or omit to do any act in violation of official duties.

It also amends §2M5.1 (Evasion of Export Controls) to incorporate 18 U.S.C. § 2332d, which prohibits a United States person, knowing or having reasonable cause to know that a country is designated under the Export Administration Act as a country supporting international terrorism, to engage in a financial transaction with the government of that country. The amendment provides a base offense level of level 26 for these offenses.

Finally, it amends §2B2.3 (Trespass) to incorporate the offense under 18 U.S.C. § 1036. That offense, added by section 2 of the Enhanced Federal Security Act of 2000, Pub. L. 106–547, prohibits, by fraud or pretense, the entering or attempting to enter any real property, vessel, or aircraft of the United States, or secure area of an airport. The amendment amends the existing two level enhancement in §2B2.3(b)(1) to provide an additional ground for application of the enhancement if the trespass involved a vessel, aircraft of the United States, or secure area of an airport. It also adds a cross reference to §2X1.1 if the offense involved the intent to commit another felony.

Effective Date: The effective date of this amendment is November 1, 2002.

Sign Up for Email Updates