AMENDMENT 566

Amendment: The Commentary to §3C1.1 captioned "Application Notes" is amended in Note 1 by deleting in the third sentence "such testimony or statements should be evaluated in a light most favorable to the defendant." and inserting in lieu thereof:

"the court should be cognizant that inaccurate testimony or statements sometimes may result from confusion, mistake, or faulty memory and, thus, not all inaccurate testimony or statements necessarily reflect a willful attempt to obstruct justice.".

The Commentary to §3C1.1 captioned "Application Notes" is amended in Note 3(i) by deleting "conduct prohibited by 18 U.S.C. §§ 1501-1516." and inserting in lieu thereof "other conduct prohibited by obstruction of justice provisions under Title 18, United States Code (e.g., 18 U.S.C. §§ 1510, 1511).".

The Commentary to §3C1.1 captioned "Application Notes" is amended in Note 4 by deleting "The following is a non-exhaustive list of examples of the" and inserting in lieu thereof "Some"; by deleting "that, absent a separate count of conviction for such conduct," and inserting in lieu thereof "ordinarily"; by deleting ", but ordinarily can appropriately be sanctioned by the determination of the particular" and inserting in lieu thereof "but may warrant a greater"; and by inserting the following after "guideline range":

". However, if the defendant is convicted of a separate count for such conduct, this enhancement will apply and increase the offense level for the underlying offense (i.e., the offense with respect to which the obstructive conduct occurred). See Application Note 7, below.

The following is a non-exhaustive list of examples of the types of conduct to which this application note applies".

The Commentary to §3C1.1 captioned "Application Notes" is amended in Note 6 by deleting:

"Where the defendant is convicted both of the obstruction offense and the underlying offense, the count for the obstruction offense will be grouped with the count for the underlying offense under subsection (c) of §3D1.2 (Groups of Closely Related Counts). The offense level for that group of closely related counts will be the offense level for the underlying offense increased by the 2-level adjustment specified by this section, or the offense level for the obstruction offense, whichever is greater.".

The Commentary to §3C1.1 captioned "Application Notes" is amended by redesignating Note 7 as Note 8; and by inserting the following as new Note 7:

"7. Where the defendant is convicted both of the obstruction offense and the underlying offense (the offense with respect to which the obstructive conduct occurred), the count for the obstruction offense will be grouped with the count for the underlying offense under subsection (c) of §3D1.2 (Groups of Closely Related Counts). The offense level for that group of closely related counts will be the offense level for the underlying offense increased by the 2-level adjustment specified by this section, or the offense level for the obstruction offense, whichever is greater.".

Reason for Amendment: This amendment addresses a circuit court conflict regarding the meaning of the last sentence of Application Note 1 in §3C1.1. The issue is whether that sentence requires the use of a heightened standard of proof when the court applies an enhancement for perjury. Compare United States v. Montague, 40 F.3d 1251 (D.C. Cir. 1994) (applying the clear and convincing standard) with United States v. Zajac, 62 F.3d 145 (6th Cir.) (applying the preponderance of the evidence standard), cert. denied 116 S. Ct. 681 (1995). The amendment changes the last sentence of Application Note 1 so that it no longer suggests the use of a heightened standard of proof. Instead, it clarifies that the court should be mindful that not all inaccurate testimony or statements reflect a willful attempt to obstruct justice.

The amendment also (A) modifies subdivision (i) of Application Note 3 in §3C1.1 to make the language more precise; (B) in response to concerns expressed in a Seventh Circuit opinion, clarifies the meaning of the phrase "absent a separate count of conviction" by adding an additional sentence at the end of Application Note 4, see United States v. Giacometti, 28 F.3d 698 (7th Cir. 1994); and (C) clarifies that the guidance in the last two sentences of Application Note 6 applies to a broader set of cases than the cases described in the first two sentences of Application Note 6.

Effective Date: The effective date of this amendment is November 1, 1997.