AMENDMENT 521
Amendment: Chapter Two, Part H, Subpart 1 is amended by deleting:
"Introductory Commentary
This subpart covers violations of civil rights statutes that typically penalize conduct involving death or bodily injury more severely than discriminatory or intimidating conduct not involving such injury.
The addition of two levels to the offense level applicable to the underlying offense in this subpart reflects the fact that the harm involved both the underlying conduct and activity intended to deprive a person of his civil rights. An added penalty is imposed on an offender who was a public official at the time of the offense to reflect the likely damage to public confidence in the integrity and fairness of government, and the added likely force of the threat because of the official’s involvement.".
Sections 2H1.1, 2H1.3, 2H1.4, and 2H1.5 are deleted in their entirety as follows:
"§2H1.1. Conspiracy to Interfere with Civil Rights; Going in Disguise to Deprive of Rights
(a) Base Offense Level (Apply the greater):
(1) 15; or
(2) 2 plus the offense level applicable to any underlying offense.
(b) Specific Offense Characteristic
(1) If the defendant was a public official at the time of the offense, increase by 4 levels.
Commentary
Statutory Provision: 18 U.S.C. § 241.
Application Notes:
1. ‘Underlying offense,’ as used in this guideline, includes any offense under federal, state, or local law other than an offense that is itself covered under Chapter Two, Part H, Subpart 1, 2, or 4. For example, in the case of a conspiracy to interfere with a person’s civil rights (a violation of 18 U.S.C. § 241) that involved an aggravated assault (the use of force) to deny certain rights or benefits in furtherance of discrimination (a violation of 18 U.S.C. § 245), the underlying offense in respect to both the violation of 18 U.S.C. § 241 (to which §2H1.1 applies) and the violation of 18 U.S.C. § 245 (to which §2H1.3 applies) would be the aggravated assault.
‘2 plus the offense level applicable to any underlying offense’ means 2 levels above the offense level (base offense level plus any applicable specific offense characteristics and cross references) from the offense guideline in Chapter Two that most closely corresponds to the underlying offense. For example, if the underlying offense was second degree murder, which under §2A1.2 has an offense level of 33, ‘2 plus the offense level applicable to any underlying offense’ would be 33 + 2 = 35. If the underlying offense was assault, criminal sexual conduct, kidnapping, abduction or unlawful restraint, the offense level from the guideline for the most comparable offense in §§2A2.1-2A4.2 (Assault, Criminal Sexual Abuse, and Kidnapping, Abduction, or Unlawful Restraint) would first be determined, and 2 levels then would be added. If the underlying offense was damage to property by means of arson or an explosive device, the offense level from §2K1.4 (Arson; Property Damage By Use of Explosives) would first be determined and 2 levels would be added. If the offense was property damage by other means, the offense level from §2B1.3 (Property Damage or Destruction) would first be determined and 2 levels would be added. If the offense was a conspiracy or attempt to commit arson, ‘2 plus the offense level applicable to any underlying offense’ would be the offense level from the guideline applicable to a conspiracy or attempt to commit arson plus 2 levels.
In certain cases, the count of which the defendant is convicted may set forth conduct that constitutes more than one underlying offense (e.g., two instances of assault, or one instance of assault and one instance of arson). In such cases, determine the offense level for the underlying offense by treating each underlying offense as if contained in a separate count of conviction. To determine which of the alternative base offense levels (e.g., §2H1.1(a)(1) or (a)(2)) results in the greater offense level, apply Chapter Three, Parts A, B, C, and D to each alternative base offense level. Use whichever results in the greater offense level. Example: The defendant is convicted of one count of conspiracy to violate civil rights that included two level 12 underlying offenses (of a type not grouped together under Chapter Three, Part D). No adjustment from Chapter Three, Parts A, B, or C applies. The base offense level from §2H1.1(a)(1) is 15. The offense level for each underlying offense from §2H1.1(a)(2) is 14 (2 + 12). Under Chapter Three, Part D (Multiple Counts), the two level 14 underlying offenses result in a combined offense level of 16. This offense level is greater than the alternative base offense level of 15 under §2H1.1(a)(1). Therefore, the case is treated as if there were two counts, one for each underlying offense, with a base offense level under §2H1.1(a)(2) of 14 for each underlying offense.
2. Where the adjustment in §2H1.1(b)(1) is applied, do not apply §3B1.3 (Abuse of Position of Trust or Use of Special Skill).
Background: This section applies to intimidating activity by various groups, including formally and informally organized groups as well as hate groups. The maximum term of imprisonment authorized by statute is ten years; except where death results, the maximum term of imprisonment authorized by statute is life imprisonment. The base offense level for this guideline assumes threatening or otherwise serious conduct.
§2H1.3. Use of Force or Threat of Force to Deny Benefits or Rights in Furtherance of Discrimination; Damage to Religious Real Property
(a) Base Offense Level (Apply the greatest):
(1) 10, if no injury occurred; or
(2) 15, if injury occurred; or
(3) 2 plus the offense level applicable to any underlying offense.
(b) Specific Offense Characteristic
(1) If the defendant was a public official at the time of the offense, increase by 4 levels.
Commentary
Statutory Provisions: 18 U.S.C. §§ 245, 247; 42 U.S.C. § 3631. For additional statutory provision(s), see Appendix A (Statutory Index).
Application Notes:
1. ‘2 plus the offense level applicable to any underlying offense’ is defined in the Commentary to §2H1.1.
2. ‘Injury’ means ‘bodily injury,’ ‘serious bodily injury,’ or ‘permanent or life-threatening bodily injury’ as defined in the Commentary to §1B1.1 (Application Instructions).
3. Where the adjustment in §2H1.3(b)(1) is applied, do not apply §3B1.3 (Abuse of Position of Trust or Use of Special Skill).
4. In the case of a violation of 42 U.S.C. § 3631, apply this guideline where the offense involved the threat or use of force. Otherwise, apply §2H1.5.
Background: The statutes covered by this guideline provide federal protection for the exercise of civil rights in a variety of contexts (e.g., voting, employment, public accommodations, etc.). The base offense level in §2H1.3(a) reflects that the threat or use of force is inherent in the offense. The maximum term of imprisonment authorized by statute is one year if no bodily injury results, ten years if bodily injury results, and life imprisonment if death results.
§2H1.4. Interference with Civil Rights Under Color of Law
(a) Base Offense Level (Apply the greater):
(1) 10; or
(2) 6 plus the offense level applicable to any underlying offense.
Commentary
Statutory Provision: 18 U.S.C. § 242.
Application Notes:
1. ‘6 plus the offense level applicable to any underlying offense’ means 6 levels above the offense level for any underlying criminal conduct. See the discussion in the Commentary to §2H1.1.
2. Do not apply the adjustment from §3B1.3 (Abuse of Position of Trust or Use of Special Skill).
Background: This maximum term of imprisonment authorized by 18 U.S.C. § 242 is one year if no bodily injury results, ten years if bodily injury results, and life imprisonment if death results. A base offense level of 10 is prescribed at §2H1.4(a)(1) providing a guideline sentence near the one-year statutory maximum for cases not resulting in death or bodily injury because of the compelling public interest in deterring and adequately punishing those who violate civil rights under color of law. The Commission intends to recommend that this one-year statutory maximum penalty be increased. An alternative base offense level is provided at §2H1.4(a)(2). The 6-level increase under subsection (a)(2) reflects the 2-level increase that is applied to other offenses covered in this Part plus a 4-level increase for the commission of the offense under actual or purported legal authority. This 4-level increase is inherent in the base offense level of 10 under subsection (a)(1).
Enhancement under §3B1.3 (Abuse of Position of Trust or Use of Special Skill) is inappropriate because the base offense level in §2H1.4(a) reflects that the abuse of actual or purported legal authority is inherent in the offense.
§2H1.5. Other Deprivations of Rights or Benefits in Furtherance of Discrimination
(a) Base Offense Level (Apply the greater):
(1) 6; or
(2) 2 plus the offense level applicable to any underlying offense.
(b) Specific Offense Characteristic
(1) If the defendant was a public official at the time of the offense, increase by 4 levels.
Commentary
Statutory Provision: 18 U.S.C. § 246.
Application Notes:
1. ‘2 plus the offense level applicable to any underlying offense’ is defined in the Commentary to §2H1.1.
2. Where the adjustment in §2H1.5(b)(1) is applied, do not apply §3B1.3 (Abuse of Position of Trust or Use of Special Skill).
Background: Violations of the statutes covered by this provision do not necessarily involve the use of force or threatening conduct or violations by public officials. Accordingly, the minimum base offense level (level 6) provided is lower than that of the other guidelines in this subpart.".
A replacement guideline with accompanying commentary is inserted as §2H1.1 (Offenses Involving Individual Rights).
Section 3A1.1 (Vulnerable Victim) is deleted in its entirety as follows:
"§3A1.1. Vulnerable Victim
If the defendant knew or should have known that a victim of the offense was unusually vulnerable due to age, physical or mental condition, or that a victim was otherwise particularly susceptible to the criminal conduct, increase by 2 levels.
Commentary
Application Notes:
1. This adjustment applies to offenses where an unusually vulnerable victim is made a target of criminal activity by the defendant. The adjustment would apply, for example, in a fraud case where the defendant marketed an ineffective cancer cure or in a robbery where the defendant selected a handicapped victim. But it would not apply in a case where the defendant sold fraudulent securities by mail to the general public and one of the victims happened to be senile. Similarly, for example, a bank teller is not an unusually vulnerable victim solely by virtue of the teller’s position in a bank.
2. Do not apply this adjustment if the offense guideline specifically incorporates this factor. For example, where the offense guideline provides an enhancement for the age of the victim, this guideline should not be applied unless the victim was unusually vulnerable for reasons unrelated to age.".
A replacement guideline with accompanying commentary is inserted as §3A1.1 (Hate Crime Motivation or Vulnerable Victim).
The Commentary to §2H4.1 captioned "Application Note" is amended in Note 1 by deleting "2 plus the offense" and inserting in lieu thereof "Offense".
Reason for Amendment: This is a five-part amendment. First, the amendment adds an additional subsection to §3A1.1 (Vulnerable Victim) to implement the directive contained in Section 280003 of the Violent Crime Control and Law Enforcement Act of 1994 by providing a three-level increase in the offense level for offenses that are "hate crimes." Second, the amendment consolidates §§2H1.1 (Offenses Involving Individual Rights), 2H1.3 (Use of Force or Threat of Force to Deny Benefits or Rights in Furtherance of Discrimination; Damage to Religious Real Property), 2H1.4 (Interference with Civil Rights Under Color of Law), and 2H1.5 (Other Deprivations of Rights Benefits in Furtherance of Discrimination) into a revised §2H1.1 (Offenses Involving Individual Rights). This revised guideline provides greater consistency in offense levels for similar conduct, reflects the additional enhancement now contained in §3A1.1, and better reflects the seriousness of the underlying conduct. Third, the amendment references violations of 18 U.S.C. § 248 (the Freedom of Access to Clinic Entrances Act of 1994, Pub. L. 103-259, 108 Stat. 694) to the consolidated §2H1.1. Fourth, the amendment clarifies the operation of §3A1.1 with respect to a vulnerable victim. Fifth, the amendment addresses the directive to the Commission in section 240002 of the Violent Crime Control and Law Enforcement Act of 1994 (pertaining to elderly victims of crimes of violence).
Section 280003 of the Violent Crime Control and Law Enforcement Act of 1994 directs the Commission to provide a minimum enhancement of three levels for offenses that the finder of fact at trial determines are hate crimes. This directive also instructs the Commission to ensure that there is reasonable consistency with other guidelines and that duplicative punishments for the same offense are avoided. The congressional directive in section 280003 requires that the three-level hate crimes enhancement apply where "the finder of fact at trial determines beyond a reasonable doubt" that the offense of conviction was a hate crime. This amendment makes the enhancement applicable if either the finder of fact at trial or, in the case of a guilty or nolo contendere plea, the court at sentencing determines that the offense was a hate crime. By broadening the applicability of the congressionally mandated enhancement, this amendment will avoid unwarranted sentencing disparity based on the mode of conviction. The Commission’s general guideline promulgation authority, see 28 U.S.C. § 994, permits such a broadening of the enhancement.
The addition of a generally applicable Chapter Three hate crimes enhancement requires amendment of the civil rights offense guidelines to avoid duplicative punishments. In addition, to further the Commission’s goal of simplifying the operation of the guidelines, the proposed amendment consolidates the four current civil rights offense guidelines into one guideline and adjusts these guidelines to take into account the new enhancement under §3A1.1(a).
The Freedom of Access to Clinic Entrances Act of 1994 makes it a crime to interfere with access to reproductive services or to interfere with certain religious activities. This Act criminalizes a broad array of conduct, from non-violent obstruction of the entrance to a clinic to murder. The amendment treats these violations in the same way as other offenses involving individual rights.
Section 240002 of the Violent Crime Control and Law Enforcement Act of 1994 directs the Commission to ensure that the guidelines provide sufficiently stringent penalties for crimes of violence against elderly victims. Upon review of the guidelines, the Commission determined that the penalties currently provided generally appear appropriate; however, this amendment strengthens the Commentary to §3A1.1 in one area by expressly providing a basis for an upward departure if both the current offense and a prior offense involved a vulnerable victim (including an elderly victim), regardless of the type of offense.
Finally, Section 250003 of the Violent Control and Law Enforcement Act of 1994 directs the Commission to review, and if necessary, amend the sentencing guidelines to ensure that victim-related adjustments for fraud offenses against older victims are adequate. Section 250003 also directs the Commission to study and report to the Congress on this issue. See Report to Congress: Adequacy of Penalties for Fraud Offenses Involving Elderly Victims (March 13, 1995). Although the Commission found that the current guidelines generally provided adequate penalties in these cases, it noted some inconsistency in the application of §3A1.1 regarding whether this adjustment required proof that the defendant had "targeted the victim on account of the victim’s vulnerability." This amendment revises the Commentary of §3A1.1 to clarify application with respect to this issue.
Effective Date: The effective date of this amendment is November 1, 1995.