633


AMENDMENT 633

Amendment: The heading to Chapter Two, Part M is amended by adding at the end "And Weapons of Mass Destruction".

Section 2M5.1 is amended by striking subsection (a) as follows:

"(a) Base Offense Level (Apply the greater):

(1) 22, if national security or nuclear proliferation controls were evaded; or

(2) 14.",

and inserting the following:

"(a) Base Offense Level (Apply the greater):

(1) 26, if national security controls or controls relating to the proliferation of nuclear, biological, or chemical weapons or materials were evaded; or

(2) 14, otherwise.".

Section 2M5.2(a)(1) is amended by striking "22" and inserting "26".

The heading to Chapter Two, Part M, Subpart 6 is amended by striking "Atomic Energy" and inserting "Nuclear, Biological, And Chemical Weapons And Materials, And Other Weapons of Mass Destruction".

Chapter Two, Part M is amended by striking §2M6.1 as follows:

"§2M6.1. Unlawful Acquisition, Alteration, Use, Transfer, or Possession of Nuclear Material, Weapons, or Facilities

(a) Base Offense Level: 30

(b) Specific Offense Characteristic

(1) If the offense was committed with intent to injure the United States or to aid a foreign nation, increase by 12 levels.

Commentary

Statutory Provisions: 42 U.S.C. §§ 2077(b), 2122, 2131. Also, 18 U.S.C. § 831 (only where the conduct is similar to that proscribed by the aforementioned statutory provisions). For additional statutory provision(s), see Appendix A (Statutory Index).".

A replacement guideline is inserted as §2M6.1 (Unlawful Production, Development, Acquisition, Stockpiling, Alteration, Use, Transfer, or Possession of Nuclear Material, Weapons, or Facilities, Biological Agents, Toxins, or Delivery Systems, Chemical Weapons, or Other Weapons of Mass Destruction; Attempt or Conspiracy).

The Commentary to §2X1.1 captioned "Application Notes" is amended in Note 1 by inserting after the line referenced to "§2E5.1;" the following:

"§2M6.1;".

The Commentary to §2X1.1 captioned "Application Notes" is amended in Note 1 by inserting after the line referenced to "§2H1.1" the following:

"§2M6.1;".

Appendix A (Statutory Index) is amended by inserting after the line referenced to 18 U.S.C. § 155 the following new line:

"18 U.S.C. § 175                     2M6.1";

by inserting after the line referenced to 18 U.S.C. § 228 the following new line:

"18 U.S.C. § 229                     2M6.1";

by inserting after the line referenced to 18 U.S.C. § 842(l)-(o) the following new line:

"18 U.S.C. § 842(p)(2)            2K1.3, 2M6.1";

in the line referenced to 18 U.S.C. § 2332a by striking "2A1.1, 2A1.2, 2A1.3, 2A1.4, 2A1.5, 2A2.1, 2A2.2, 2B1.3," and by inserting ", 2M6.1" after "2K1.4"; and

by inserting after the line referenced to 50 U.S.C. App. § 462 the following new line:

"50 U.S.C. App. § 1701          2M5.1, 2M5.2".

Reason for Amendment: This amendment responds to a statutory provision expressing a sense of Congress and addresses two offenses relating to biological and chemical weapons. Specifically, the amendment responds to section 1423(a) of the National Defense Authorization Act for Fiscal Year 1997, Public Law 104–201, that expressed a sense of Congress that guideline penalties are inadequate for certain offenses involving the importation and exportation of nuclear, chemical, and biological weapons, materials, or technologies by providing a four-level increase for those offenses in subsection (a)(1) of both §§2M5.1 (Evasion of Export Controls) and 2M5.2 (Exportation of Arms, Munitions, or Military Equipment or Services Without a Required Validated Export License). This increase serves to make the penalty structure for those offenses proportional to other national security guidelines in Chapter Two, Part M. In addition, Appendix A (Statutory Index) is amended to refer one of the offenses, 50 U.S.C. § 1701 (which prior to this amendment was not referenced in the Statutory Index), to both §§2M5.1 and 2M5.2.

The amendment also substantially revises §2M6.1 to incorporate offenses at 18 U.S.C. § 175, relating to biological weapons, and 18 U.S.C. § 229, relating to chemical weapons. Specifically, the amendment modifies §2M6.1 as follows:

First, the amendment provides three alternative base offense levels. The first alternative base offense level of level 42 applies if the offense was committed with the intent to injure the United States or to aid a foreign government or foreign terrorist organization and incorporates the 12-level enhancement previously at subsection (b)(1). Therefore, this change does not affect the overall offense level for these offenses. "Foreign terrorist organizations" are added because such groups are investing in the acquisition of unconventional weapons such as nuclear, biological, and chemical agents. This first alternative base offense level is expected to apply to cases previously covered by the guideline (i.e., the acquisition of nuclear material from nuclear facilities in order to assist foreign governments, thereby creating a threat to the national security), as well as to cases that implicate the national security and involve biological and chemical weapons and other weapons of mass destruction.

The amendment provides that, if the base offense level of level 42 applies, none of the adjustments in subsection (b) shall apply. However, if death results, the cross reference allows for the possibility of a greater offense level through application of the first degree murder guideline.

The second alternative base offense level of level 28 applies to those cases that do not threaten the national security of the United States, and is expected to apply in most cases.

The third alternative base offense level of level 20 applies to cases which involve a threat to use a nuclear, biological, or chemical weapon or material, or other weapon of mass destruction, but do not involve any conduct evidencing an intent or ability to carry out the threat and, accordingly, are less serious offenses.

Second, the amendment provides a two-level enhancement in subsection (b)(1) if the offense or threat involved particularly dangerous types of nuclear, chemical, and biological weapons and materials that are defined in the guideline commentary by reference to the applicable statutory and regulatory provisions. This enhancement reflects the distinctions already made in international treaties, provisions of title 18, United States Code, relevant regulatory schemes, and the fact that certain types of weapons and materials are inherently more lethal and pose a greater threat to the public safety.

Third, the amendment provides a four-level enhancement in subsection (b)(2) if any victim died or sustained permanent or life-threatening bodily injury, and a two-level enhancement if any victim sustained serious bodily injury. If the degree of injury is between permanent or life-threatening bodily injury and serious bodily injury, a three-level enhancement is provided. This enhancement is modeled after the enhancement found in §2N1.1 (Tampering or Attempting to Tamper Involving Risk of Death or Bodily Injury).

Fourth, the amendment provides a four-level enhancement for cases involving a substantial disruption of public, governmental, or business functions or services, or the substantial expenditure of funds to clean up, decontaminate, or otherwise respond to the offense.

Fifth, the amendment provides two cross references, applicable if the resulting offense level is greater and either death resulted (in which case the first or second degree murder guideline would apply), or if the offense was tantamount to attempted murder (in which case the attempted murder guideline would apply). These cross references are also modeled after the cross reference found in §2N1.1.

Sixth, the amendment provides a special instruction that if the defendant is convicted of one count involving the death of, serious bodily injury to, or attempted murder of, more than one victim, the grouping rules will be applied as if the defendant had been convicted of separate counts for each such victim.

Seventh, the amendment amends Appendix A to refer violations of 18 U.S.C. §§ 175 and 229 to §2M6.1 and to delete a number of guideline references for violations of 18 U.S.C. § 2332a and instead provide a reference for that offense to §§2K1.4 (Arson; Property Damage by Use of Explosives) and 2M6.1 (in the case of other weapons of mass destruction).

Finally, the amendment amends the title of §2M6.1 to include attempts and conspiracies, and adds §2M6.1 under the sections addressing attempts and conspiracies in Application Note 1 of §2X1.1 (Attempt, Solicitation, or Conspiracy) to indicate that attempts and conspiracies are covered expressly by the §2M6.1 offense guideline.

Effective Date: The effective date of this amendment is November 1, 2001.