791

AMENDMENT 791

Amendment: Section 2B1.1(b) is amended by striking paragraph (1) as follows:

 

“(1) If the loss exceeded $5,000, increase the offense level as follows:

 

  Loss (Apply the Greatest)  Increase in Level
 
(A) $5,000 or less no increase
(B) More than $5,000 add 2
(C) More than $10,000 add 4
(D) More than $30,000 add 6
(E) More than $70,000 add 8
(F) More than $120,000 add 10
(G) More than $200,000 add 12
(H) More than $400,000 add 14
(I) More than $1,000,000 add 16
(J) More than $2,500,000 add 18
(K) More than $7,000,000 add 20
(L) More than $20,000,000 add 22
(M) More than $50,000,000 add 24
(N) More than $100,000,000 add 26
(O) More than $200,000,000 add 28
(P) More than $400,000,000 add 30.”;


and inserting the following:

 

“(1) If the loss exceeded $6,500, increase the offense level as follows:

 

  Loss (Apply the Greatest)  Increase in Level
 
(A) $6,500 or less no increase
(B) More than $6,500 add 2
(C) More than $15,000 add 4
(D) More than $40,000 add 6
(E) More than $95,000 add 8
(F) More than $150,000 add 10
(G) More than $250,000 add 12
(H) More than $550,000 add 14
(I) More than $1,500,000 add 16
(J) More than $3,500,000 add 18
(K) More than $9,500,000 add 20
(L) More than $25,000,000 add 22
(M) More than $65,000,000 add 24
(N) More than $150,000,000 add 26
(O) More than $250,000,000 add 28
(P) More than $550,000,000 add 30.”.

 

Section 2B1.4(b)(1) is amended by striking “$5,000” and inserting “$6,500”.

 

Section 2B1.5(b)(1) is amended by striking “$2,000” and inserting “$2,500”; and by striking “$5,000” both places such term appears and inserting “$6,500”.

 

Section 2B2.1(b) is amended by striking paragraph (2) as follows:

 

“(2) If the loss exceeded $2,500, increase the offense level as follows:

 

  Loss (Apply the Greatest)  Increase in Level
 
(A) $2,500 or less no increase
(B) More than $2,500 add 1
(C) More than $10,000 add 2
(D) More than $50,000 add 3
(E) More than $250,000 add 4
(F) More than $800,000 add 5
(G) More than $1,500,000 add 6
(H) More than $2,500,000 add 7
(I) More than $5,000,000 add 8.”;

 

and inserting the following:

 

“(2) If the loss exceeded $5,000, increase the offense level as follows:

 

  Loss (Apply the Greatest)  Increase in Level
 
(A) $5,000 or less no increase
(B) More than $5,000 add 1
(C) More than $20,000 add 2
(D) More than $95,000 add 3
(E) More than $500,000 add 4
(F) More than $1,500,000 add 5
(G) More than $3,000,000 add 6
(H) More than $5,000,000 add 7
(I) More than $9,500,000 add 8.”.

 

Section 2B2.3(b)(3) is amended by striking “$2,000” and inserting “$2,500”; and by striking “$5,000” both places such term appears and inserting “$6,500”.

 

Section 2B3.1(b) is amended by striking paragraph (7) as follows:

 

“(7) If the loss exceeded $10,000, increase the offense level as follows:

 

  Loss (Apply the Greatest)  Increase in Level
 
(A) $10,000 or less no increase
(B) More than $10,000 add 1
(C) More than $50,000 add 2
(D) More than $250,000 add 3
(E) More than $800,000 add 4
(F) More than $1,500,000 add 5
(G) More than $2,500,000 add 6
(H) More than $5,000,000 add 7.”;

 

and inserting the following:

 

“(7) If the loss exceeded $20,000, increase the offense level as follows:

 

  Loss (Apply the Greatest)  Increase in Level
 
(A) $20,000 or less no increase
(B) More than $20,000 add 1
(C) More than $95,000 add 2
(D) More than $500,000 add 3
(E) More than $1,500,000 add 4
(F) More than $3,000,000 add 5
(G) More than $5,000,000 add 6
(H) More than $9,500,000 add 7.”.

 

Section 2B3.2(b)(2) is amended by striking “$10,000” and inserting “$20,000”.

 

Sections 2B3.3(b)(1), 2B4.1(b)(1), 2B5.1(b)(1), 2B5.3(b)(1), and 2B6.1(b)(1) are each amended by striking “$2,000” and inserting “$2,500”; and by striking “$5,000” both places such term appears and inserting “$6,500”.

 

Sections 2C1.1(b)(2), 2C1.2(b)(2), and 2C1.8(b)(1) are each amended by striking “$5,000” and inserting “$6,500”.

 

Sections 2E5.1(b)(2) and 2Q2.1(b)(3) are each amended by striking “$2,000” and inserting “$2,500”; and by striking “$5,000” both places such term appears and inserting “$6,500”.

 

Section 2R1.1(b) is amended by striking paragraph (2) as follows:

 

“(2) If the volume of commerce attributable to the defendant was more than $1,000,000, adjust the offense level as follows:

 

  Volume of Commerce (Apply the Greatest)   Adjustment to Offense Level
 
(A) More than $1,000,000 add 2
(B) More than $10,000,000 add 4
(C) More than $40,000,000 add 6
(D) More than $100,000,000 add 8
(E) More than $250,000,000 add 10
(F) More than $500,000,000 add 12
(G) More than $1,000,000,000 add 14
(H) More than $1,500,000,000 add 16.”;

 

and inserting the following:

 

“(2) If the volume of commerce attributable to the defendant was more than $1,000,000, adjust the offense level as follows:

 

  Volume of Commerce (Apply the Greatest)   Adjustment to Offense Level
 
(A) More than $1,000,000 add 2
(B) More than $10,000,000 add 4
(C) More than $50,000,000 add 6
(D) More than $100,000,000 add 8
(E) More than $300,000,000 add 10
(F) More than $600,000,000 add 12
(G) More than $1,200,000,000 add 14
(H) More than $1,850,000,000 add 16.”.

 

Section 2T3.1(a) is amended by striking “$1,000” both places such term appears and inserting “$1,500”; and by striking “$100” both places such term appears and inserting “$200”.

 

Section 2T4.1 is amended by striking the following:

 

  "Tax Loss (Apply the Greatest)  Offense Level
 
(A) $2,000 or less 6
(B) More than $2,000 8
(C) More than $5,000 10
(D) More than $12,500 12
(E) More than $30,000 14
(F) More than $80,000 16
(G) More than $200,000 18
(H) More than $400,000 20
(I) More than $1,000,000 22
(J) More than $2,500,000 24
(K) More than $7,000,000 26
(L) More than $20,000,000 28
(M) More than $50,000,000 30
(N) More than $100,000,000 32
(O) More than $200,000,000 34
(P) More than $400,000,000 36.”;

 

and inserting the following:

 

  "Tax Loss (Apply the Greatest)  Offense Level
 
(A) $2,500 or less 6
(B) More than $2,500 8
(C) More than $6,500 10
(D) More than $15,000 12
(E) More than $40,000 14
(F) More than $100,000 16
(G) More than $250,000 18
(H) More than $550,000 20
(I) More than $1,500,000 22
(J) More than $3,500,000 24
(K) More than $9,500,000 26
(L) More than $25,000,000 28
(M) More than $65,000,000 30
(N) More than $150,000,000 32
(O) More than $250,000,000 34
(P) More than $550,000,000 36.”;

 

Section 5E1.2 is amended in subsection (c)(3) by striking the following:

 

                 “ Fine Table

 

Offense Level  A Minimun  B Maximum
 
3 and below $100 $5,000
4–5 $250 $5,000
6–7 $500 $5,000
8–9 $1,000 $10,000
10-11 $2,000 $20,000
12–13 $3,000 $30,000
14–15 $4,000 $40,000
16–17 $5,000 $50,000
18–19 $6,000 $60,000
20–22 $7,500 $75,000
23–25 $10,000 $100,000
26–28 $12,500 $125,000
29–31 $15,000 $150,000
32–34 $17,500 $175,000
35–37 $20,000 $200,000
38 and above $25,000 $250,000.”,

 

and inserting the following:

 

                 “ Fine Table

 

Offense Level  A Minimun  B Maximum
 
3 and below $200 $9,500
4–5 $500 $9,500
6–7 $1,000 $9,500
8–9 $2,000 $20,000
10–11 $4,000 $40,000
12–13 $5,500 $55,000
14–15 $7,500 $75,000
16–17 $10,000 $95,000
18–19 $10,000 $100,000
20–22 $15,000 $150,000
23–25 $20,000 $200,000
26–28 $25,000 $250,000
29–31 $30,000 $300,000
32–34 $35,000 $350,000
35–37 $40,000 $400,000
38 and above $50,000 $500,000.”;

 

in subsection (c)(4) by striking “$250,000” and inserting “$500,000”;

 

and by inserting after subsection (g) the following new subsection (h):

 

“(h) Special Instruction

 

(1) For offenses committed prior to November 1, 2015, use the applicable fine guideline range that was set forth in the version of §5E1.2(c) that was in effect on November 1, 2014, rather than the applicable fine guideline range set forth in subsection (c) above.”.

 

Section 8C2.4 is amended in subsection (d) by striking the following:

 

                    “ Offense Level Fine Table

 

Offense Level Amount
6 or less $5,000
7 $7,500
8 $10,000
9 $15,000
10 $20,000
11 $30,000
12 $40,000
13 $60,000
14 $85,000
15 $125,000
16 $175,000
17 $250,000
18 $350,000
19 $500,000
20 $650,000
21 $910,000
22 $1,200,000
23 $1,600,000
24 $2,100,000
25 $2,800,000
26 $3,700,000
27 $4,800,000
28 $6,300,000
29 $8,100,000
30 $10,500,000
31 $13,500,000
32 $17,500,000
33 $22,000,000
34 $28,500,000
35 $36,000,000
36 $45,500,000
37 $57,500,000
38 or more $72,500,000.”,

 

and inserting the following:

 

                     “ Offense Level Fine Table

 

Offense Level Amount
 
6 or less $8,500
7 $15,000
8 $15,000
9 $25,000
10 $35,000
11 $50,000
12 $70,000
13 $100,000
14 $150,000
15 $200,000
16 $300,000
17 $450,000
18 $600,000
19 $850,000
20 $1,000,000
21 $1,500,000
22 $2,000,000
23 $3,000,000
24 $3,500,000
25 $5,000,000
26 $6,500,000
27 $8,500,000
28 $10,000,000
29 $15,000,000
30 $20,000,000
31 $25,000,000
32 $30,000,000
33 $40,000,000
34 $50,000,000
35 $65,000,000
36 $80,000,000
37 $100,000,000
38 or more $150,000,000.”;


and by inserting after subsection (d) the following new subsection (e):

 

“(e) Special Instruction

 

(1) For offenses committed prior to November 1, 2015, use the offense level fine table that was set forth in the version of §8C2.4(d) that was in effect on November 1, 2014, rather than the offense level fine table set forth in subsection (d) above.”.

 

Reason for Amendment: This amendment makes adjustments to the monetary tables in §§2B1.1 (Theft, Property, Destruction, and Fraud), 2B2.1 (Burglary), 2B3.1 (Robbery), 2R1.1 (Bid-Rigging, Price-Fixing or Market-Allocation Agreements Among Competitors), 2T4.1 (Tax Table), 5E1.2 (Fines for Individual Defendants), and 8C2.4 (Base Fine) to account for inflation. The amendment adjusts the amounts in each of the seven monetary tables using a specific multiplier derived from the Consumer Price Index (CPI), and then rounds—

 

  • amounts greater than $100,000,000 to the nearest multiple of $50,000,000;
  • amounts greater than $10,000,000 to the nearest multiple of $5,000,000;
  • amounts greater than $1,000,000 to the nearest multiple of $500,000;
  • amounts greater than $100,000 to the nearest multiple of $50,000;
  • amounts greater than $10,000 to the nearest multiple of $5,000;
  • amounts greater than $1,000 to the nearest multiple of $500; and
  • amounts of $1,000 or less to the nearest multiple of $50.

In addition, the amendment includes conforming changes to other Chapter Two guidelines that refer to the monetary tables.

 

Congress has generally mandated that agencies in the executive branch adjust the civil monetary penalties they impose to account for inflation using the CPI. See 28 U.S.C. § 2461 note (Federal Civil Penalties Inflationary Adjustment Act of 1990). Although the Commission’s work does not involve civil monetary penalties, it does establish appropriate criminal sentences for categories of offenses and offenders, including appropriate amounts for criminal fines. While some of the monetary values in the Chapter Two guidelines have been revised since they were originally established in 1987, none of the tables has been specifically revised to account for inflation.

 

Due to inflationary changes, there has been a gradual decrease in the value of the dollar over time. As a result, monetary losses in current offenses reflect, to some degree, a lower degree of harm and culpability than did equivalent amounts when the monetary tables were established or last substantively amended. Similarly, the fine levels recommended by the guidelines are lower in value than when they were last adjusted, and therefore, do not have the same sentencing impact as a similar fine in the past. Based on its analysis and widespread support for inflationary adjustments expressed in public comment, the Commission concluded that aligning the above monetary tables with modern dollar values is an appropriate step at this time.

 

The amendment adjusts each table based on inflationary changes since the year each monetary table was last substantially amended:

 

  • Loss table in §2B1.1 and tax table in §2T4.1: adjusting for inflation from 2001 ($1.00 in 2001 = $1.34 in 2014);
  • Loss tables in §§2B2.1 and 2B3.1 and fine table for individual defendants at §5E1.2(c)(3): adjusting for inflation from 1989 ($1.00 in 1989 = $1.91 in 2014);
  • Volume of Commerce table in §2R1.1: adjusting for inflation from 2005 ($1.00 in 2005 = $1.22 in 2014); and
  • Fine table for organizational defendants at §8C2.4(d): adjusting for inflation from 1991 ($1.00 in 1991 = $1.74 in 2014).

Adjusting from the last substantive amendment year appropriately accounts for the Commission’s previous work in revising these tables at various times. Although not specifically focused on inflationary issues, previous Commissions engaged in careful examination (and at times, a wholesale rewriting) of the monetary tables and ultimately included monetary and enhancement levels that it considered appropriate at that time. The Commission estimates that this amendment would result in the Bureau of Prisons having approximately 224 additional prison beds available at the end of the first year after implementation, and approximately 956 additional prison beds available at the end of its fifth year of implementation.

 

Finally, the amendment adds a special instruction to both §§5E1.2 and 8C2.4 providing that, for offenses committed prior to November 1, 2015, the court shall use the fine provisions that were in effect on November 1, 2014, rather than the fine provisions as amended for inflation. This addition responds to concerns expressed in public comment that changes to the fine tables might create ex post facto problems. It ensures that an offender whose offense level is calculated under the current Guidelines Manual is not subject to the inflated fine provisions if his or her offense was committed prior to November 1, 2015. Such guidance is similar to that provided in the commentary to §5E1.3 (Special Assessment) relating to the amount of the special assessment to be imposed in a given case.

 

Effective Date: The effective date of this amendment is November 1, 2015.