522


AMENDMENT 522

Amendment: Section §2K2.1(a)(1) is amended by deleting:

"defendant had at least two prior felony convictions of either a crime of violence or a controlled substance offense, and the instant offense involved a firearm listed in 26 U.S.C. § 5845(a)",

and inserting in lieu thereof:

"offense involved a firearm described in 26 U.S.C. § 5845(a) or 18 U.S.C. § 921(a)(30), and the defendant had at least two prior felony convictions of either a crime of violence or a controlled substance offense".

Section §2K2.1(a)(3) is amended by deleting:

"defendant had one prior felony conviction of either a crime of violence or a controlled substance offense, and the instant offense involved a firearm listed in 26 U.S.C. § 5845(a)",

and inserting in lieu thereof:

"offense involved a firearm described in 26 U.S.C. § 5845(a) or 18 U.S.C. § 921(a)(30), and the defendant had one prior conviction of either a crime of violence or controlled substance offense".

Section §2K2.1(a)(4)(B) is amended by deleting "listed in 26 U.S.C. § 5845(a)" and inserting in lieu thereof "described in 26 U.S.C. § 5845(a) or 18 U.S.C. § 921(a)(30)".

Section 2K2.1(a)(5) is amended by deleting "listed in 26 U.S.C. § 5845(a)" and inserting in lieu thereof "described in 26 U.S.C. § 5845(a) or 18 U.S.C. § 921(a)(30)".

Section 2K2.1(a)(8) is amended by deleting "or (m)" and by inserting in lieu thereof "(m), (s), (t), or (x)(1)".

The Commentary to §2K2.1 captioned "Statutory Provisions" is amended by deleting "(r)" and inserting in lieu thereof "(r)-(w), (x)(1)"; and by deleting "(g)" and inserting in lieu thereof "(g), (h), (j)-(n)".

The Commentary to §2K2.1 captioned "Application Notes" is amended by deleting:

"3. ‘Firearm listed in 26 U.S.C. § 5845(a)’ includes: (i) any short-barreled rifle or shotgun or any weapon made therefrom; (ii) a machinegun; (iii) a silencer; (iv) a destructive device; or (v) any ‘other weapon,’ as that term is defined by 26 U.S.C. § 5845(e). A firearm listed in 26 U.S.C. § 5845(a) does not include unaltered handguns or regulation-length rifles or shotguns. For a more detailed definition, refer to 26 U.S.C. § 5845.",

and inserting in lieu thereof:

"3. A ‘firearm described in 26 U.S.C. § 5845(a)’ includes: (i) a shotgun having a barrel or barrels of less than 18 inches in length; a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length; a rifle having a barrel or barrels of less than 16 inches in length; or a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length; (ii) a machinegun; (iii) a silencer; (iv) a destructive device; and (v) certain unusual weapons defined in 26 U.S.C. § 5845(e) (that are not conventional, unaltered handguns, rifles, or shotguns). For a more detailed definition, refer to 26 U.S.C. § 5845.

A ‘firearm described in 18 U.S.C. § 921(a)(30)’ (pertaining to semiautomatic assault weapons) does not include a weapon exempted under the provisions of 18 U.S.C. § 922(v)(3).".

The Commentary to §2K2.1 captioned "Application Notes" is amended in Note 6 by deleting:

"or (v) being an alien, is illegally or unlawfully in the United States",

and inserting in lieu thereof:

"(v) being an alien, is illegally or unlawfully in the United States; or (vi) is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child as defined in 18 U.S.C. § 922(d)(8)".

The Commentary to §2K2.1 captioned "Application Notes" is amended by deleting:

"12. If the defendant is convicted under 18 U.S.C. § 922(i), (j), or (k), or 26 U.S.C. § 5861(g) or (h) (offenses involving stolen firearms or ammunition), and is convicted of no other offense subject to this guideline, do not apply the adjustment in subsection (b)(4) because the base offense level itself takes such conduct into account.".

and inserting in lieu thereof:

"12. If the only offense to which §2K2.1 applies is 18 U.S.C. § 922 (i), (j), or (u), 18 U.S.C. § 924(j) or (k), or 26 U.S.C. § 5861(g) or (h) (offenses involving a stolen firearm or stolen ammunition) and the base offense level is determined under subsection (a)(7), do not apply the adjustment in subsection (b)(4) unless the offense involved a firearm with an altered or obliterated serial number. This is because the base offense level takes into account that the firearm or ammunition was stolen.

Similarly, if the only offense to which §2K2.1 applies is 18 U.S.C. § 922(k) (offenses involving an altered or obliterated serial number) and the base offense level is determined under subsection (a)(7), do not apply the adjustment in subsection (b)(4) unless the offense involved a stolen firearm or stolen ammunition. This is because the base offense level takes into account that the firearm had an altered or obliterated serial number.".

Reason for Amendment: This is a five-part amendment. First, the amendment revises §2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition) to provide increased offense levels for possession of a semiautomatic assault weapon that correspond to the offense levels currently provided for possession of machineguns and other firearms described in 26 U.S.C. § 5845(a). Second, the amendment addresses section 110201 of the Violent Crime Control Law Enforcement Act of 1994 by providing an offense level of six for the misdemeanor portion of 18 U.S.C. § 922(x)(1) (involving sale or transfer of a handgun or ammunition to a juvenile). For an offense under the felony portion of 18 U.S.C. § 922(x)(1) (involving the sale or transfer of a handgun or handgun ammunition to a juvenile knowing or having reasonable cause to believe that the handgun or ammunition was intended to be used in a crime), the enhancement in subsection (b)(5) will provide a minimum offense level of 18. Third, the amendment addresses section 110401 of the Violent Crime Control and Law Enforcement Act of 1994 by adding to the definition of a "prohibited person" in §2K2.1 a person under the court order described in that section of the Act. Fourth, the amendment provides an offense level of six for the misdemeanors set forth in 18 U.S.C. § 922 (s) and (t) (involving violations of the Brady Act). Fifth, the amendment clarifies that Application Note 12 in §2K2.1 applies only to cases in which the base offense level is determined under §2K2.1(a)(7).

Effective Date: The effective date of this amendment is November 1, 1995.