AMENDMENT 618
Section 2B5.1(b)(2) is amended by inserting "(A)" after "defendant"; and by striking ", and the offense level as determined above is less than 15, increase to level 15." and inserting "; or (B) controlled or possessed (i) counterfeiting paper similar to a distinctive paper; or (ii) a feature or device essentially identical to a distinctive counterfeit deterrent, increase by 2 levels.".
Section 2B5.1(b) is amended by redesignating subdivisions (3) and (4) as subdivisions (4) and (5), respectively; and by inserting after subdivision (2) the following:
"(3) If subsection (b)(2)(A) applies, and the offense level determined under that subsection is less than level 15, increase to level 15.".
The Commentary to §2B5.1 captioned "Statutory Provisions" is amended by inserting "A" after "474".
The Commentary to §2B5.1 captioned "Application Notes" is amended by striking Note 1 as follows:
"1. For purposes of this guideline, ‘United States’ means each of the fifty states, the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands, Guam, the Northern Mariana Islands, and American Samoa.",
and inserting the following:
"1. Definitions.—For purposes of this guideline:
‘Distinctive counterfeit deterrent’ and ‘distinctive paper’ have the meaning given those terms in 18 U.S.C. § 474A(c)(2) and (1), respectively.
‘United States’ means each of the fifty states, the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands, Guam, the Northern Mariana Islands, and American Samoa.".
The Commentary to §2B5.1 captioned "Application Notes" is amended in Note 2 by inserting "Applicability to Counterfeit Bearer Obligations of the United States.—" before "This guideline".
The Commentary to §2B5.1 captioned "Application Notes" is amended in Note 3 by inserting "Inapplicability to Genuine but Fraudulently Altered Instruments.—" before "‘Counterfeit,".
The Commentary to §2B5.1 captioned "Application Notes" is amended by striking Note 4 as follows:
"4. Subsection (b)(2) does not apply to persons who merely photocopy notes or otherwise produce items that are so obviously counterfeit that they are unlikely to be accepted even if subjected to only minimal scrutiny.",
and inserting the following:
"4. Inapplicability to Certain Obviously Counterfeit Items.—Subsection (b)(2)(A) does not apply to persons who produce items that are so obviously counterfeit that they are unlikely to be accepted even if subjected to only minimal scrutiny.".
The Commentary to §2B5.1 captioned "Background" is amended by striking "(b)(3)" and inserting "(b)(4)".
Reason for Amendment: The frequency of counterfeiting offenses has increased significantly since 1995 due to the increasing affordability and availability of personal computers and digital printers. This amendment addresses concerns raised by the Department of the Treasury and the United States Secret Service regarding both the operation of, and the penalties provided by, §2B5.1 (Offenses Involving Counterfeit Bearer Obligations of the United States). The amendment increases penalties for counterfeiting activity in two ways.
First, the amendment adds a two-level enhancement for manufacturing, in addition to the minimum offense level of level 15 for manufacturing. This change will ensure some degree of additional punishment for all offenders who engage in manufacturing activity.
Second, the amendment adds a two-level enhancement (which would apply alternatively to the manufacturing enhancement) if the offense involved possessing or controlling (1) paper that is similar to a distinctive paper used by the United States for its currency, obligations, or securities; or (2) a feature or device that is essentially identical to a distinctive counterfeit deterrent used by the United States for its currency, obligations, or securities. This enhancement is justified because of the higher statutory maximum penalties under 18 U.S.C. § 474A (i.e., a term of imprisonment of up to 25 years compared to 10, 15, and 20 years for other counterfeiting offenses). In addition, use of paper similar to "distinctive paper" and use of features and devices essentially identical to "distinctive counterfeit deterrents" (both of which are defined in §2B5.1 consistently with the statute) make the counterfeit item more passable and the offense more sophisticated.
In addition, the amendment deletes the language in the commentary of §2B5.1 that suggests that the manufacturing adjustment does not apply if the defendant "merely photocopies". That commentary was intended to make the manufacturing minimum offense level of level 15 inapplicable to notes that are so obviously counterfeit that they are unlikely to be accepted. Particularly with the advent of digital technology, it cannot be said that photocopying necessarily produces a note so obviously counterfeit as to be impassible.
Effective Date: The effective date of this amendment is November 1, 2001.