643


AMENDMENT 643

Amendment: Chapter Three, Part A, is amended by striking §3A1.2 as follows:

"§3A1.2. Official Victim

If --

(a) the victim was a government officer or employee; a former government officer or employee; or a member of the immediate family of any of the above, and the offense of conviction was motivated by such status; or

(b) during the course of the offense or immediate flight therefrom, the defendant or a person for whose conduct the defendant is otherwise accountable, knowing or having reasonable cause to believe that a person was a law enforcement or corrections officer, assaulted such officer in a manner creating a substantial risk of serious bodily injury,

increase by 3 levels.",

and inserting the following:

"§3A1.2. Official Victim

(a) If (1) the victim was (A) a government officer or employee; (B) a former government officer or employee; or (C) a member of the immediate family of a person described in subdivision (A) or (B); and (2) the offense of conviction was motivated by such status, increase by 3 levels.

(b) If, in a manner creating a substantial risk of serious bodily injury, the defendant or a person for whose conduct the defendant is otherwise accountable—

(1) knowing or having reasonable cause to believe that a person was a law enforcement officer, assaulted such officer during the course of the offense or immediate flight therefrom; or

(2) knowing or having reasonable cause to believe that a person was a prison official, assaulted such official while the defendant (or a person for whose conduct the defendant is otherwise accountable) was in the custody or control of a prison or other correctional facility,

increase by 3 levels.".

The Commentary to §3A1.2 captioned "Application Notes" is amended in Note 1 by inserting "Applicability to Certain Victims.—" before "This guideline applies".

The Commentary to §3A1.2 captioned "Application Notes" is amended by striking Note 2 as follows:

"2. Certain high-level officials, e.g., the President and Vice President, although covered by this section, do not represent the heartland of the conduct covered. An upward departure to reflect the potential disruption of the governmental function in such cases typically would be warranted.";

and by redesignating Notes 3 through 6 as Notes 2 through 5, respectively.

The Commentary to §3A1.2 captioned "Application Notes" is amended in Note 2, as redesignated by this amendment, by inserting "Nonapplicability in Case of Incorporation of Factor in Chapter Two.—" before "Do not apply".

The Commentary to §3A1.2 captioned "Application Notes" is amended in Note 3, as redesignated by this amendment, by inserting "Application of Subsection (a).—" before "‘Motivated by such"; and by striking "subdivision" and inserting "subsection".

The Commentary to §3A1.2 captioned "Application Notes" is amended by striking Note 4, as redesignated by this amendment, as follows:

"4. Subdivision (b) applies in circumstances tantamount to aggravated assault against a law enforcement or corrections officer, committed in the course of, or in immediate flight following, another offense, such as bank robbery. While this subdivision may apply in connection with a variety of offenses that are not by nature targeted against official victims, its applicability is limited to assaultive conduct against law enforcement or corrections officers that is sufficiently serious to create at least a ‘substantial risk of serious bodily injury’ and that is proximate in time to the commission of the offense.",

and inserting the following:

"4. Application of Subsection (b).—

(A) In General.—Subsection (b) applies in circumstances tantamount to aggravated assault (i) against a law enforcement officer, committed in the course of, or in immediate flight following, another offense; or (ii) against a prison official, while the defendant (or a person for whose conduct the defendant is otherwise accountable) was in the custody or control of a prison or other correctional facility. While subsection (b) may apply in connection with a variety of offenses that are not by nature targeted against official victims, its applicability is limited to assaultive conduct against such official victims that is sufficiently serious to create at least a ‘substantial risk of serious bodily injury’.

(B) Definitions.—For purposes of subsection (b):

‘Custody and control’ includes ‘non-secure custody’, i.e., custody with no significant physical restraint. For example, a defendant is in the custody and control of a prison or other correctional facility if the defendant (i) is on a work detail outside the security perimeter of the prison or correctional facility; (ii) is physically away from the prison or correctional facility while on a pass or furlough; or (iii) is in custody at a community corrections center, community treatment center, ‘halfway house’, or similar facility. The defendant also shall be deemed to be in the custody and control of a prison or other correctional facility while the defendant is in the status of having escaped from that prison or correctional facility.

‘Prison official’ means any individual (including a director, officer, employee, independent contractor, or volunteer, but not including an inmate) authorized to act on behalf of a prison or correctional facility. For example, this enhancement would be applicable to any of the following: (i) an individual employed by a prison as a corrections officer; (ii) an individual employed by a prison as a work detail supervisor; and (iii) a nurse who, under contract, provides medical services to prisoners in a prison health facility.

‘Substantial risk of serious bodily injury’ includes any more serious injury that was risked, as well as actual serious bodily injury (or more serious injury) if it occurs.".

The Commentary to §3A1.2 captioned "Application Notes" is amended by striking Note 5, as redesignated by this amendment, as follows:

"5. The phrase ‘substantial risk of serious bodily injury’ in subdivision (b) is a threshold level of harm that includes any more serious injury that was risked, as well as actual serious bodily injury (or more serious harm) if it occurs.",

and inserting the following:

"5. Upward Departure Provision.—Certain high level officials, e.g., the President and Vice President, although covered by this section, do not represent the heartland of the conduct covered. An upward departure to reflect the potential disruption of the governmental function in such cases typically would be warranted.".

Reason for Amendment: This amendment expands the category of persons who may be considered official victims for purposes of triggering the two level enhancement at §3A1.2 (Official Victim). This amendment is promulgated in response to concerns expressed by the Bureau of Prisons regarding United States v. Walker, 202 F.3d 181 (3d Cir. 2000). Walker held that an individual employed by the prison to supervise food service functions who was attacked by an inmate subordinate was not a "corrections officer" within the scope of §3A1.2. The Bureau of Prisons advised the Commission that the Bureau uses a variety of employees, contractors, and volunteers to supervise inmates and that maintenance of a safe and stable institutional environment is fostered by knowledge on the part of inmates that anyone in prison employment or performing an authorized role within a prison is afforded the protection of §3A1.2. In accord with the Bureau’s recommendation, the amendment includes a broad definition of "prison official" to include prison employees, as well as independent contractors and volunteers on prison premises with official authorization, but does not include inmates.

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