AMENDMENT 430
The Commentary to §2H1.1 captioned "Application Notes" is amended by inserting the following additional paragraph as the first paragraph of Note 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.".
The Commentary to §2H1.1 captioned "Application Notes" is amended in Note 1 by inserting the following additional paragraph at the end:
"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.".
The Commentary to §2H1.1 captioned "Application Notes" is amended in the first sentence of the second paragraph of Note 1 (formerly the first paragraph) by deleting "contained in the particular guideline in Chapter Two) for any underlying criminal conduct" and inserting in lieu thereof "and cross references) from the offense guideline in Chapter Two that most closely corresponds to the underlying offense"; in the last sentence of the second paragraph of Note 1 (formerly the first paragraph) by deleting "an offense" and "that offense" and inserting in lieu thereof "arson" in each instance.
Reason for Amendment: This amendment clarifies the operation of this guideline.
Effective Date: The effective date of this amendment is November 1, 1991.