AMENDMENT 189
Section 2K2.1 is amended by deleting the entire guideline and accompanying commentary, except for the commentary captioned "Background", as follows:
"§2K2.1. Receipt, Possession, or Transportation of Firearms and Other Weapons by Prohibited Persons
(a) Base Offense Level: 9
(b) Specific Offense Characteristics
(1) If the firearm was stolen or had an altered or obliterated serial number, increase by 1 level.
(2) If the defendant obtained or possessed the firearm solely for sport or recreation, decrease by 4 levels.
(c) Cross Reference
(1) If the defendant used the firearm in committing or attempting another offense, apply the guideline in respect to such other offense, or §2X1.1 (Attempt or Conspiracy) if the resulting offense level is higher than that determined above.
Commentary
Statutory Provisions: 18 U.S.C. §§ 922(a)(6), (g), (h).
Application Note:
1. Under §2K2.1(b)(2), intended lawful use, as determined by the surrounding circumstances, provides a decrease in offense level. Relevant circumstances include, among others, the number and type of firearms (sawed-off shotguns, for example, have few legitimate uses) and ammunition, the location and circumstances of possession, the nature of the defendant’s criminal history (e.g., whether involving firearms), and the extent to which possession is restricted by local law.",
and inserting in lieu thereof:
"§2K2.1. Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition
(a) Base Offense Level (Apply the greatest):
(1) 16, if the defendant is convicted under 18 U.S.C. § 922(o) or 26 U.S.C. § 5861; or
(2) 12, if the defendant is convicted under 18 U.S.C. § 922(g), (h), or (n); or if the defendant, at the time of the offense, had been convicted in any court of an offense punishable by imprisonment for a term exceeding one year; or
(3) 6, otherwise.
(b) Specific Offense Characteristics
(1) If the defendant obtained or possessed the firearm or ammunition solely for lawful sporting purposes or collection, decrease the offense level determined above to level 6.
(2) If the firearm was stolen or had an altered or obliterated serial number, increase by 2 levels.
(c) Cross References
(1) If the offense involved the distribution of a firearm or possession with intent to distribute, apply §2K2.2 (Unlawful Trafficking and Other Prohibited Transactions Involving Firearms) if the resulting offense level is greater than that determined above.
(2) If the defendant used or possessed the firearm in connection with commission or attempted commission of another offense, apply §2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that other offense, if the resulting offense level is greater than that determined above.
Commentary
Statutory Provisions: 18 U.S.C. § 922(a)(1), (a)(3), (a)(4), (a)(6), (e), (f), (g), (h), (i), (j), (k), (l), (n), and (o); 26 U.S.C. § 5861(b), (c), (d), (h), (i), (j), and (k).
Application Notes:
1. The definition of ‘firearm’ used in this section is that set forth in 18 U.S.C. § 921(a)(3) (if the defendant is convicted under 18 U.S.C. § 922) and 26 U.S.C. § 5845(a) (if the defendant is convicted under 26 U.S.C. § 5861). These definitions are somewhat broader than that used in Application Note 1(e) of the Commentary to §1B1.1 (Application Instructions). Under 18 U.S.C. § 921(a)(3), the term ‘firearm’ means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Under 26 U.S.C. § 5845(a), the term ‘firearm’ includes a shotgun, or a weapon made from a shotgun, with a barrel or barrels of less than 18 inches in length; a weapon made from a shotgun or rifle with an overall length of less than 26 inches; a rifle, or weapon made from a rifle, with a barrel or barrels less than 16 inches in length; a machine gun; a muffler or silencer for a firearm; a destructive device; and certain other large bore weapons.
2. Under §2K2.1(b)(1), intended lawful use, as determined by the surrounding circumstances, provides a decrease in the offense level. Relevant circumstances include, among others, the number and type of firearms (sawed-off shotguns, for example, have few legitimate uses) and ammunition, the location and circumstances of possession, the nature of the defendant’s criminal history (e.g., whether involving firearms), and the extent to which possession was restricted by local law.".
The Commentary to §2K2.1 captioned "Background" is amended in the last paragraph by deleting "§2K2.1(c)" and inserting in lieu thereof "§2K2.1(c)(2)".
Chapter Two, Part K, Subpart 2 is amended by deleting §§2K2.2 and 2K2.3 in their entirety as follows:
"§2K2.2. Receipt, Possession, or Transportation of Firearms and Other Weapons in Violation of National Firearms Act
(a) Base Offense Level: 12
(b) Specific Offense Characteristics
(1) If the firearm was stolen or had an altered or obliterated serial number, increase by 1 level.
(2) If the firearm was a silencer, increase by 4 levels.
(3) If the defendant obtained or possessed the firearm solely for sport, recreation or collection, decrease by 6 levels.
(c) Cross Reference
(1) If the defendant used the firearm in committing or attempting another offense, apply the guideline for such other offense or §2X1.1 (Attempt or Conspiracy), if the resulting offense level is higher than that determined above.
Commentary
Statutory Provisions: 26 U.S.C. §§ 5861(b) through (l).
Application Notes:
1. Under §2K2.2(b)(3), intended lawful use, as determined by the surrounding circumstances, provides a decrease in offense level. Relevant circumstances include, among others, the number and type of firearms (sawed-off shotguns, for example, have few legitimate uses) and ammunition, the location and circumstances of possession, the nature of the defendant’s criminal history (e.g., whether involving firearms), and the extent to which possession is restricted by local law.
2. Subsection (c)(1) refers to any situation in which the defendant possessed a firearm to facilitate another offense that he committed or attempted.
Background: 26 U.S.C. § 5861 prohibits the unlicensed receipt, possession, transportation, or manufacture of certain firearms, such as machine guns, silencers, rifles and shotguns with shortened barrels, and destructive devices. As with §2K2.1, there is considerable variation in the conduct included under this statutory provision and some violations may be relatively technical.
§2K2.3. Prohibited Transactions in or Shipment of Firearms and Other Weapons
(a) Base Offense Level:
(1) 12, if convicted under 26 U.S.C. § 5861; or
(2) 6, otherwise.
(b) Specific Offense Characteristics
(1) If the number of firearms unlawfully dealt in exceeded 5, increase as follows:
| Number of Firearms | Increase in Level |
| (A) 6 - 10 | add 1 |
| (B) 11 - 20 | add 2 |
| (C) 21 - 50 | add 3 |
| (D) 51 - 100 | add 4 |
| (E) 101 - 200 | add 5 |
| (F) more than 200 | add 6 |
(2) If any of the following applies, use the greatest:
(A) If the defendant knew or had reason to believe that a purchaser was a person prohibited by federal law from owning the firearm, increase by 2 levels.
(B) If the defendant knew or had reason to believe that a purchaser resided in another state in which he was prohibited from owning the firearm, increase by 1 level.
(C) If the defendant knew or had reason to believe that a firearm was stolen or had an altered or obliterated serial number, increase by 1 level.
(c) Cross Reference
(1) If the defendant provided the firearm to another for the purpose of committing another offense, or knowing that he planned to use it in committing another offense, apply §2X1.1 (Attempt or Conspiracy) in respect to such other offense, if the resulting offense level is higher.
Commentary
Statutory Provisions: 18 U.S.C. § 922 (a)(1), (a)(5), (b)(2), (b)(3), (d), (i), (j), (k), (l); 26 U.S.C. § 5861(a).
Background: This section applies to a variety of offenses involving prohibited transactions in or transportation of firearms and certain other weapons.".
A replacement guideline with accompanying commentary is inserted as §2K2.2 (Unlawful Trafficking and Other Prohibited Transactions Involving Firearms).
Chapter Two, Part K, Subpart 2 is amended by inserting an additional guideline with accompanying commentary as §2K2.3 (Receiving, Transporting, Shipping or Transferring a Firearm or Ammunition With Intent to Commit Another Offense, or With Knowledge that It Will Be Used in Committing Another Offense).
Reason for Amendment: This amendment addresses a number of diverse substantive and technical issues, as well as the creation of several new offenses, and increased statutory maximum penalties for certain other offenses. Because there exist a large number of overlapping statutory provisions, the three basic guidelines, §2K2.1 (Possession by a prohibited person), §2K2.2 (Possession of certain types of weapons), and §2K2.3 (Unlawful trafficking) are not closely tied to the actual conduct. The amendment addresses this issue by consolidating the current three guidelines into two guidelines: (1) unlawful possession, receipt, or transportation, and (2) unlawful trafficking; and by more carefully drawing the distinctions between the base offense levels provided. The third guideline in this amendment is a new guideline to address transfer of a weapon with intent or knowledge that it will be used to commit another offense (formerly covered in a cross reference) and a new offense added by the Anti-Drug Abuse Act of 1988 (Section 6211)(Interstate travel to acquire a firearm for a criminal purpose).
The base offense level for conduct covered by the current §2K2.1 is increased in the amendment from 9 to 12. The statutorily authorized maximum sentence for the conduct covered under §2K2.1 was increased from five to ten years by the Anti-Drug Abuse Act of 1988 (Section 6462). Note, however, that the most aggravated conduct under §2K2.1 (possession of a weapon during commission of another offense) is handled by the cross-reference at subsection (c) and is based upon the offense level for an attempt to commit the underlying offense. See Background Commentary to current §2K2.1. The offense level for unlawful possession of a machine gun, sawed off shotgun, or destructive device is increased from 12 to 16. In addition, the amendment raises the enhancement for stolen weapons or obliterated serial numbers from 1 to 2 levels to better reflect the seriousness of this conduct. The numbers currently used in the table for the distribution of multiple weapons in §2K2.2 are amended to increase the offense level more rapidly for sale of multiple weapons.
Effective Date: The effective date of this amendment is November 1, 1989.