AMENDMENT 379
Section 2S1.3(a)(1) is amended by deleting:
"(B) made false statements to conceal or disguise the evasion of reporting requirements; or
(C) reasonably should have believed that the funds were criminally derived property;",
and inserting in lieu thereof:
"(B) knowingly filed, or caused another to file, a report containing materially false statements; or".
Section 2S1.3(b)(1) is amended by deleting "5 levels." and inserting in lieu thereof "4 levels. If the resulting offense level is less than level 13, increase to level 13.".
The Commentary to §2S1.3 captioned "Statutory Provisions" is amended by deleting "18 U.S.C. § 1005;"; and by deleting "5316," immediately before "5322".
The Commentary to §2S1.3 captioned "Application Notes" is amended by deleting:
"2. Subsection (a)(1)(C) applies where a reasonable person would have believed from the circumstances that the funds were criminally derived property. Subsection (b)(1) applies if the defendant knew or believed the funds were criminally derived property. Subsection (b)(1) applies in addition to, and not in lieu of, subsection (a)(1)(C). Where subsection (b)(1) applies, subsection (a)(1)(C) also will apply. It is possible that a defendant ‘believed’ or ‘reasonably should have believed’ that the funds were criminally derived property even if, in fact, the funds were not so derived (e.g., in a ‘sting’ operation where the defendant is told the funds were derived from the unlawful sale of controlled substances).";
and in the caption by deleting "Notes" and inserting in lieu thereof "Note".
The Commentary to §2S1.3 captioned "Background" is amended by deleting the second and third paragraphs as follows:
" A base offense level of 13 is provided for those offenses where the defendant either structured the transaction to evade reporting requirements, made false statements to conceal or disguise the activity, or reasonably should have believed that the funds were criminally derived property. A lower alternative base offense level of 5 is provided in all other cases. The Commission anticipates that such cases will involve simple recordkeeping or other more minor technical violations of the regulatory scheme governing certain monetary transactions committed by defendants who reasonably believe that the funds at issue emanated from legitimate sources.
Where the defendant actually knew or believed that the funds were criminally derived property, subsection (b)(1) provides for a 5 level increase in the offense level.",
and inserting in lieu thereof:
" A base offense level of 13 is provided for those offenses where the defendant either structured the transaction to evade reporting requirements or knowingly filed, or caused another to file, a report containing materially false statements. A lower alternative base offense level of 5 is provided in all other cases.
Where the defendant actually knew or believed that the funds were criminally derived property, subsection (b)(1) provides for the greater of a 4-level increase or an increase to level 13.".
Chapter Two, Part S is amended by inserting an additional guideline with accompanying commentary as §2S1.4 (Failure to File Currency and Monetary Instrument Report).
Reason for Amendment: This amendment clarifies the scope of the specific offense characteristics in §2S1.3 and modifies subsection (b)(1) so that it does not produce a result that exceeds the comparable offense level under §2S1.2. In addition, this amendment creates an additional offense guideline (§2S1.4) for offenses involving Currency and Monetary Instrument Reports (CMIR). Currently, such offenses are covered by §2S1.3, which deals with all currency transaction reporting requirements. CMIR violations are committed by individuals who, when entering or leaving the country, knowingly conceal $10,000 or more in cash or bearer instruments on their persons or in their personal effects and knowingly fail to file the report required by the U.S. Customs Service. Such criminal conduct is sufficiently different from the other offenses covered by §2S1.3 to merit treatment in a separate guideline.
Effective Date: The effective date of this amendment is November 1, 1991.