AMENDMENT 638
Section 2B1.1(c) is amended by adding at the end the following:
"(4) If the offense involved a cultural heritage resource, apply §2B1.5 (Theft of, Damage to, or Destruction of, Cultural Heritage Resources; Unlawful Sale, Purchase, Exchange, Transportation, or Receipt of Cultural Heritage Resources), if the resulting offense level is greater than that determined above.".
The Commentary to §2B1.1 captioned "Application Notes" is amended in Note 1 by inserting after "For purposes of this guideline:" the following paragraph:
"‘Cultural heritage resource’ has the meaning given that term in Application Note 1 of the Commentary to §2B1.5 (Theft of, Damage to, or Destruction of, Cultural Heritage Resources; Unlawful Sale, Purchase, Exchange, Transportation, or Receipt of Cultural Heritage Resources).".
The Commentary to §2B1.1 captioned "Application Notes" is amended in subdivision (F) of Note 2 by adding at the end the following:
"(vii) Value of Cultural Heritage Resources.—In a case involving a cultural heritage resource, loss attributable to that cultural heritage resource shall be determined in accordance with the rules for determining the ‘value of the cultural heritage resource’ set forth in Application Note 2 of the Commentary to §2B1.5.".
Chapter Two, Part B, Subpart 1 is amended by adding at the end the following new guideline and accompanying commentary:
"§2B1.5. Theft of, Damage to, or Destruction of, Cultural Heritage Resources; Unlawful Sale, Purchase, Exchange, Transportation, or Receipt of Cultural Heritage Resources
(a) Base Offense Level: 8
(b) Specific Offense Characteristics
(1) If the value of the cultural heritage resource (A) exceeded $2,000 but did not exceed $5,000, increase by 1 level; or (B) exceeded $5,000, increase by the number of levels from the table in §2B1.1 (Theft, Property Destruction, and Fraud) corresponding to that amount.
(2) If the offense involved a cultural heritage resource from, or that, prior to the offense, was on, in, or in the custody of (A) the national park system; (B) a National Historic Landmark; (C) a national monument or national memorial; (D) a national marine sanctuary; (E) a national cemetery; (F) a museum; or (G) the World Heritage List, increase by 2 levels.
(3) If the offense involved a cultural heritage resource constituting (A) human remains; (B) a funerary object; (C) cultural patrimony; (D) a sacred object; (E) cultural property; (F) designated archaeological or ethnological material; or (G) a pre-Columbian monumental or architectural sculpture or mural, increase by 2 levels.
(4) If the offense was committed for pecuniary gain or otherwise involved a commercial purpose, increase by 2 levels.
(5) If the defendant engaged in a pattern of misconduct involving cultural heritage resources, increase by 2 levels.
(6) If a dangerous weapon was brandished or its use was threatened, increase by 2 levels. If the resulting offense level is less than level 14, increase to level 14.
(c) Cross Reference
(1) If the offense involved arson, or property damage by the use of any explosive, explosive material, or destructive device, apply §2K1.4 (Arson; Property Damage by Use of Explosives), if the resulting offense level is greater than that determined above.
Commentary
Statutory Provisions: 16 U.S.C. §§ 470ee, 668(a), 707(b); 18 U.S.C. §§ 541-546, 641, 661-662, 666, 668, 1152-1153, 1163, 1168, 1170, 1361, 2232, 2314-2315.
Application Notes:
1. ‘Cultural Heritage Resource’ Defined.—For purposes of this guideline, ‘cultural heritage resource’ means any of the following:
(A) A historic property, as defined in 16 U.S.C. § 470w(5) (see also section 16(l) of 36 C.F.R. pt. 800).
(B) A historic resource, as defined in 16 U.S.C. § 470w(5).
(C) An archaeological resource, as defined in 16 U.S.C. § 470bb(1) (see also section 3(a) of 43 C.F.R. pt. 7; 36 C.F.R. pt. 296; 32 C.F.R. pt. 299; 18 C.F.R. pt. 1312).
(D) A cultural item, as defined in section 2(3) of the Native American Graves Protection and Repatriation Act, 25 U.S.C. § 3001(3) (see also 43 C.F.R. § 10.2(d)).
(E) A commemorative work. ‘Commemorative work’ (A) has the meaning given that term in section 2(c) of Public Law 99–652 (40 U.S.C. § 1002(c)); and (B) includes any national monument or national memorial.
(F) An object of cultural heritage, as defined in 18 U.S.C. § 668(a)(2).
(G) Designated ethnological material, as described in 19 U.S.C. §§ 2601(2)(ii), 2601(7), and 2604.
2. Value of the Cultural Heritage Resource Under Subsection (b)(1).—This application note applies to the determination of the value of the cultural heritage resource under subsection (b)(1).
(A) General Rule.—For purposes of subsection (b)(1), the value of the cultural heritage resource shall include, as applicable to the particular resource involved, the following:
(i) The archaeological value. (Archaeological value shall be included in the case of any cultural heritage resource that is an archaeological resource.)
(ii) The commercial value.
(iii) The cost of restoration and repair.
(B) Estimation of Value.—For purposes of subsection (b)(1), the court need only make a reasonable estimate of the value of the cultural heritage resource based on available information.
(C) Definitions.—For purposes of this application note:
(i) ‘Archaeological value’ of a cultural heritage resource means the cost of the retrieval of the scientific information which would have been obtainable prior to the offense, including the cost of preparing a research design, conducting field work, conducting laboratory analysis, and preparing reports, as would be necessary to realize the information potential. (See 43 C.F.R. § 7.14(a); 36 C.F.R. § 296.14(a); 32 C.F.R. § 229.14(a); 18 C.F.R. § 1312.14(a).)
(ii) ‘Commercial value’ of a cultural heritage resource means the fair market value of the cultural heritage resource at the time of the offense. (See 43 C.F.R. § 7.14(b); 36 C.F.R. § 296.14(b); 32 C.F.R. § 229.14(b); 18 C.F.R. § 1312.14(b).)
(iii) ‘Cost of restoration and repair’ includes all actual and projected costs of curation, disposition, and appropriate reburial of, and consultation with respect to, the cultural heritage resource; and any other actual and projected costs to complete restoration and repair of the cultural heritage resource, including (I) its reconstruction and stabilization; (II) reconstruction and stabilization of ground contour and surface; (III) research necessary to conduct reconstruction and stabilization; (IV) the construction of physical barriers and other protective devices; (V) examination and analysis of the cultural heritage resource as part of efforts to salvage remaining information about the resource; and (VI) preparation of reports. (See 43 C.F.R. § 7.14(c); 36 C.F.R. § 296.14(c); 32 C.F.R. § 229.14(c); 18 C.F.R. § 1312.14(c).)
(D) Determination of Value in Cases Involving a Variety of Cultural Heritage Resources.—In a case involving a variety of cultural heritage resources, the value of the cultural heritage resources is the sum of all calculations made for those resources under this application note.
3. Enhancement in Subsection (b)(2).—For purposes of subsection (b)(2):
(A) ‘Museum’ has the meaning given that term in 18 U.S.C. § 668(a)(1) except that the museum may be situated outside the United States.
(B) ‘National cemetery’ has the meaning given that term in Application Note 1 of the Commentary to §2B1.1 (Theft, Property Destruction, and Fraud).
(C) ‘National Historic Landmark’ means a property designated as such pursuant to 16 U.S.C. § 470a(a)(1)(B).
(D) ‘National marine sanctuary’ means a national marine sanctuary designated as such by the Secretary of Commerce pursuant to 16 U.S.C. § 1433.
(E) ‘National monument or national memorial’ means any national monument or national memorial established as such by Act of Congress or by proclamation pursuant to the Antiquities Act of 1906 (16 U.S.C. § 431).
(F) ‘National park system’ has the meaning given that term in 16 U.S.C. § 1c(a).
(G) ‘World Heritage List’ means the World Heritage List maintained by the World Heritage Committee of the United Nations Educational, Scientific, and Cultural Organization in accordance with the Convention Concerning the Protection of the World Cultural and Natural Heritage.
4. Enhancement in Subsection (b)(3).—For purposes of subsection (b)(3):
(A) ‘Cultural patrimony’ has the meaning given that term in 25 U.S.C. § 3001(3)(D) (see also 43 C.F.R. 10.2(d)(4)).
(B) ‘Cultural property’ has the meaning given that term in 19 U.S.C. § 2601(6).
(C) ‘Designated archaeological or ethnological material’ means archaeological or ethnological material described in 19 U.S.C. § 2601(7) (see also 19 U.S.C. §§ 2601(2) and 2604).
(D) ‘Funerary object’ means an object that, as a part of the death rite or ceremony of a culture, was placed intentionally, at the time of death or later, with or near human remains.
(E) ‘Human remains’ (i) means the physical remains of the body of a human; and (ii) does not include remains that reasonably may be determined to have been freely disposed of or naturally shed by the human from whose body the remains were obtained, such as hair made into ropes or nets.
(F) ‘Pre-Columbian monumental or architectural sculpture or mural’ has the meaning given that term in 19 U.S.C. § 2095(3).
(G) ‘Sacred object’ has the meaning given that term in 25 U.S.C. § 3001(3)(C) (see also 43 C.F.R. § 10.2(d)(3)).
5. Pecuniary Gain and Commercial Purpose Enhancement Under Subsection (b)(4).—
(A) ‘For Pecuniary Gain’.—For purposes of subsection (b)(4), ‘for pecuniary gain’ means for receipt of, or in anticipation of receipt of, anything of value, whether monetary or in goods or services. Therefore, offenses committed for pecuniary gain include both monetary and barter transactions, as well as activities designed to increase gross revenue.
(B) Commercial Purpose.—The acquisition of cultural heritage resources for display to the public, whether for a fee or donation and whether by an individual or an organization, including a governmental entity, a private non-profit organization, or a private for-profit organization, shall be considered to involve a ‘commercial purpose’ for purposes of subsection (b)(4).
6. Pattern of Misconduct Enhancement Under Subsection (b)(5).—
(A) Definition.—For purposes of subsection (b)(5), ‘pattern of misconduct involving cultural heritage resources’ means two or more separate instances of offense conduct involving a cultural heritage resource that did not occur during the course of the offense (i.e., that did not occur during the course of the instant offense of conviction and all relevant conduct under §1B1.3 (Relevant Conduct)). Offense conduct involving a cultural heritage resource may be considered for purposes of subsection (b)(5) regardless of whether the defendant was convicted of that conduct.
(B) Computation of Criminal History Points.—A conviction taken into account under subsection (b)(5) is not excluded from consideration of whether that conviction receives criminal history points pursuant to Chapter Four, Part A (Criminal History).
7. Dangerous Weapons Enhancement Under Subsection (b)(6).—For purposes of subsection (b)(6), ‘brandished’ and ‘dangerous weapon’ have the meaning given those terms in Application Note 1 of the Commentary to §1B1.1 (Application Instructions).
8. Multiple Counts.—For purposes of Chapter Three, Part D (Multiple Counts), multiple counts involving cultural heritage offenses covered by this guideline are grouped together under subsection (d) of §3D1.2 (Groups of Closely Related Counts). Multiple counts involving cultural heritage offenses covered by this guideline and offenses covered by other guidelines are not to be grouped under §3D1.2(d).
9. Upward Departure Provision.—There may be cases in which the offense level determined under this guideline substantially understates the seriousness of the offense. In such cases, an upward departure may be warranted. For example, an upward departure may be warranted if (A) in addition to cultural heritage resources, the offense involved theft of, damage to, or destruction of, items that are not cultural heritage resources (such as an offense involving the theft from a national cemetery of lawnmowers and other administrative property in addition to historic gravemarkers or other cultural heritage resources); or (B) the offense involved a cultural heritage resource that has profound significance to cultural identity (e.g., the Statue of Liberty or the Liberty Bell).".
Section 2Q2.1 is amended by adding after subsection (b) the following:
"(c) Cross Reference
(1) If the offense involved a cultural heritage resource, apply §2B1.5 (Theft of, Damage to, or Destruction of, Cultural Heritage Resources; Unlawful Sale, Purchase, Exchange, Transportation, or Receipt of Cultural Heritage Resources), if the resulting offense level is greater than that determined above.".
The Commentary to §2Q2.1 captioned "Application Notes" is amended by adding at the end the following:
"6. For purposes of subsection (c)(1), ‘cultural heritage resource’ has the meaning given that term in Application Note 1 of the Commentary to §2B1.5 (Theft of, Damage to, or Destruction of, Cultural Heritage Resources; Unlawful Sale, Purchase, Exchange, Transportation, or Receipt of Cultural Heritage Resources).".
Section 3D1.2(d) is amended by inserting "2B1.5," after "2B1.4,".
Appendix A (Statutory Index) is amended by striking the line referenced to 16 U.S.C. § 433;
by inserting before the line referenced to 16 U.S.C. § 668(a) the following new line:
"16 U.S.C. § 470ee 2B1.5";
in the line referenced to 16 U.S.C. § 668(a) by inserting "2B1.5," before "2Q2.1";
in the line referenced to 16 U.S.C. § 707(b) by inserting "2B1.5," before "2Q2.1";
in the line referenced to 18 U.S.C. § 541 by inserting "2B1.5," before "2T3.1";
in the line referenced to 18 U.S.C. § 542 by inserting "2B1.5," before "2T3.1";
in the line referenced to 18 U.S.C. § 543 by inserting "2B1.5," before "2T3.1";
in the line referenced to 18 U.S.C. § 544 by inserting "2B1.5," before "2T3.1";
in the line referenced to 18 U.S.C. § 545 by inserting "2B1.5," before "2Q2.1";
by inserting after the line referenced to 18 U.S.C. § 545 the following new line:
"18 U.S.C. § 546 2B1.5";
in the line referenced to 18 U.S.C. § 641 by inserting ", 2B1.5" after "2B1.1";
in the line referenced to 18 U.S.C. § 661 by inserting ", 2B1.5" after "2B1.1";
in the line referenced to 18 U.S.C. § 662 by inserting ", 2B1.5" after "2B1.1";
in the line referenced to 18 U.S.C. § 666(a)(1)(A) by inserting ", 2B1.5" after "2B1.1";
in the line referenced to 18 U.S.C. § 668 by striking "2B1.1" and inserting "2B1.5";
by inserting after the line referenced to 18 U.S.C. § 1121 the following new line:
"18 U.S.C. § 1152 2B1.5";
in the line referenced to 18 U.S.C. § 1153 by inserting "2B1.5," after "2B1.1,";
in the line referenced to 18 U.S.C. § 1163 by inserting ", 2B1.5" after "2B1.1";
by inserting after the line referenced to 18 U.S.C. § 1168 the following new line:
"18 U.S.C. § 1170 2B1.5";
in the line referenced to 18 U.S.C. § 1361 by inserting ", 2B1.5" after "2B1.1";
in the line referenced to 18 U.S.C. § 2232 by inserting "2B1.5," before "2J1.2";
in the line referenced to 18 U.S.C. § 2314 by inserting ", 2B1.5" after "2B1.1"; and
in the line referenced to 18 U.S.C. § 2315 by inserting ", 2B1.5" after "2B1.1".
Reason for Amendment: This amendment provides a new guideline at §2B1.5 (Theft of, Damage to, Destruction of, Cultural Heritage Resources; Unlawful Sale, Purchase, Exchange, Transportation, or Receipt of Cultural Heritage Resources) for offenses involving cultural heritage resources. This amendment reflects the Commission’s conclusion that the existing sentencing guidelines for economic and property destruction crimes are inadequate to punish in an appropriate and proportional way the variety of federal crimes involving the theft of, damage to, destruction of, or illicit trafficking in, cultural heritage resources. The Commission has determined that a separate guideline, which specifically recognizes both the federal government’s long-standing obligation and role in preserving such resources, and the harm caused to both the nation and its inhabitants when its history is degraded through the destruction of cultural heritage resources, is needed.
Cultural heritage resources include national memorials, landmarks, parks, archaeological and other historic and cultural resources, specifically designated by Congress and the President for the preservation of the cultural heritage of this nation and its ancestors. The federal government acts either as a trustee for the public generally, or as a fiduciary on behalf of American Indians, Alaska Natives and Native Hawaiian Organizations, to protect these cultural heritage resources. Because individuals, communities, and nations identify themselves through intellectual, emotional, and spiritual connections to places and objects, the effects of cultural heritage resource crimes transcend mere monetary considerations. Accordingly, this new guideline takes into account the transcendent and irreplaceable value of cultural heritage resources and punishes in a proportionate way the aggravating conduct associated with cultural heritage resource crimes.
This guideline incorporates into the definition of "cultural heritage resource" a broad range of existing federal statutory definitions for various historical, cultural, and archaeological items. If a defendant is convicted of an offense that charges illegal conduct involving a cultural heritage resource, this guideline will apply, irrespective of whether the conviction is obtained under general property theft or damage statutes, such as laws concerning the theft and destruction of government property, 18 U.S.C. § 641, interstate sale or receipt of stolen property, 18 U.S.C. §§ 2314-15, and smuggling, 18 U.S.C. §§ 541 et seq., or under specific cultural heritage statutes, such as the Archaeological Resources Protection Act of 1979, 16 U.S.C. § 470ee (ARPA), the criminal provisions of the Native American Graves Protection and Repatriation Act (NAGPRA) at 18 U.S.C. § 1170, and 18 U.S.C. § 668, which concerns theft from museums. In addition, if a more general offense is charged that is referenced in Appendix A to §2B1.1 (Theft, Property Destruction, and Fraud), this guideline will apply by cross reference if the offense conduct involves a cultural heritage resource and results in a higher offense level.
This new guideline has a base offense level of level 8, which is two levels higher than the base offense level for general economic and property destruction crimes. The higher base offense level represents the Commission’s determination that offenses involving cultural heritage resources are more serious because they involve essentially irreplaceable resources and cause intangible harm to society.
The new guideline also provides that the monetary value of the cultural heritage resource is an important, although not the sole, factor in determining the appropriate punishment. The Commission has elected not to use the concept of "loss," which is an integral part of the theft, fraud, and property destruction guideline at §2B1.1, because cultural heritage offenses do not involve the same fungible and compensatory values embodied in "loss." Instead, under this new guideline, value is to be based on commercial value, archaeological value, and the cost of restoration and repair. These methods of valuation are derived from existing federal law. See 16 U.S.C. § 470ee(d); 43 C.F.R. § 7.14.
The Commission has recognized that archaeological value shall be used in calculating the value of archaeological resources but has provided flexibility for the sentencing court to determine whether either commercial value or the cost of restoration and repair, or both, should be added to archaeological value in determining the appropriate value of archaeological resources. For all other types of cultural heritage resources covered by this guideline, the Commission has provided flexibility for the sentencing court regarding whether and when to use all or some of the methods of valuation, as appropriate, for calculating the total value associated with the harm to the particular resource caused by the defendant’s offense conduct. The value of the cultural heritage resource is then referenced to the monetary table provided at §2B1.1(b)(1) in order to determine appropriate and proportionate offense levels in a manner consistent with the overall guidelines structure.
The new guideline provides five additional specific offense characteristics to provide proportionate enhancements for aggravating conduct that may occur in connection with cultural heritage resource offenses. In providing enhancements for these non-pecuniary aggravating factors, the Commission seeks to ensure that the nonquantifiable harm caused by the offense to affected cultural groups, and society as a whole, is adequately reflected in the penalty structure.
The first two of these enhancements, at subsections (b)(2) and (b)(3), relate to whether the offense involves a place or resource that Congress has designated for special protection. A two level enhancement attaches if the offense involves a resource from one of eight locations specifically designated by Congress for historic commemoration, resource preservation, or public education. These are the national park system, national historic landmarks, national monuments, national memorials, national marine sanctuaries, national cemeteries, sites contained on the World Heritage List, and museums.
Consistent with the definition in 18 U.S.C. § 668(a)(1), museums are defined broadly to include all organized and permanent institutions, with an essentially educational or aesthetic purpose, which exhibit tangible objects to the public on a regular schedule. Adoption of this definition reflects the Commission’s recognition that cultural heritage resource crimes affecting institutions dedicated to the preservation of resources and associated knowledge, irrespective of the institution’s size, ownership, or funding, deprive the public and future generations of the opportunity to learn and appreciate the richness of the nation’s heritage. Similarly, this enhancement reflects the Commission’s assessment that damage to the other listed places degrades not only the resource itself but also the historical and cultural aspects which the resource commemorates.
An additional two level enhancement attaches to offense conduct that involves any of a number of specified resources, including human remains and other resources that have been designated by Congress for special treatment and heightened protection under federal law. Funerary objects, items of cultural patrimony, and sacred objects are included because they are domestic cultural heritage resources protected under NAGPRA. See 25 U.S.C. § 3001. Cultural property, designated archaeological and ethnological material, and pre-Columbian monumental and architectural sculpture and murals are included in the enhancement because these are cultural heritage resources of foreign provenance for which Congress has chosen, in the implementation of international treaties and bilateral agreements, to impose import restrictions. See 19 U.S.C. §§ 2092, 2606, and 2607.
This guideline also provides a two level enhancement at subsection (b)(4) if the offense was committed for pecuniary gain or otherwise involved a commercial purpose. This increase is based on a determination that offenders who are motivated by financial gain or other commercial incentive are more culpable than offenders who are motivated solely by their personal interest in possessing cultural heritage resources. Those motivated by financial gain contribute to illicit trafficking and support dealers and brokers who earn a livelihood from illegal activities. Mindful of INTERPOL’s findings, as reported by the Department of Justice, that the annual dollar value of art and cultural property theft is exceeded only by trafficking in illicit narcotics, money laundering, and arms trafficking, the Commission seeks to ensure that the penalty structure adequately accounts for these increased harms.
This guideline also provides a two level enhancement at subsection (b)(5) if the offense involves a pattern of misconduct, and provides a definition of "pattern of misconduct" that is designed to interact with other requirements of the guidelines regarding relevant conduct and criminal history. "Pattern of misconduct" is defined as "two or more separate instances of offense conduct involving cultural heritage resources that did not occur during the course of the instant offense (i.e., that did not occur during the offense of conviction and all relevant conduct under §1B1.3 (Relevant Conduct))". Accordingly, under this guideline, separate instances of offense conduct need not result in a criminal conviction or legal adjudication in order for this enhancement to apply. Separate instances of offense conduct involving cultural heritage resources that are included in the defendant’s criminal history may also form the factual basis for the application of this enhancement. The Commission considers such increased punishment to be appropriate for offenders who repeatedly disregard cultural heritage resource laws and regulations and the social values underlying them. These repeat offenders cause serious harm, not only to the resources themselves, but to the nation and the individuals who treasure them.
This guideline also provides at subsection (b)(6) a two level enhancement and a minimum offense level of level 14 if a dangerous weapon, including a firearm, is brandished or its use threatened. This enhancement reflects the increased culpability of offenders who pose a threat to law enforcement officers and innocent passersby. Recognizing that there are legitimate uses in remote expanses of tribal and federal land for certain tools and firearms that may otherwise qualify as "dangerous weapons" under the guideline definitions, the Commission has limited the scope of this enhancement by requiring that the dangerous weapon or firearm be brandished or its use threatened, in order for increased punishment to attach under this provision.
In light of the increased potential for the symbols of our nation’s heritage and culture to be targets of violent individuals, including terrorists, the Commission also has provided for increased punishment through a cross reference to §2K1.4 (Arson; Property Damage by Use of Explosives), if the offense involved arson or property damage by the use of any explosive, explosive material, or destructive devices, when the resulting offense level is greater under §2K1.4 than the offense level under this guideline.
This guideline also includes a special rule in the Commentary to address multiple counts of cultural heritage resource offenses, as well as multiple counts of conviction involving offenses under this and other guidelines. Consistent with the principles underlying the rules for grouping multiple counts of conviction in §3D1.2 (Groups of Closely Related Counts) and the unique concerns sought to be addressed by this amendment, the new guideline provides that multiple counts of cultural heritage resource offenses are to be grouped under §3D1.2(d). However, because the monetary harm is measured differently, a count of conviction for an offense sentenced under §2B1.5 may not be grouped under this provision with a conviction for an offense sentenced under a different guideline.
This guideline also invites an upward departure if the determined offense level substantially understates the seriousness of the cultural heritage resource offense. Two illustrations of such situations are given. Finally, this amendment provides a cross reference within §2B1.1. Theft, fraud, and property destruction offenses which also involve cultural heritage resources are cross referenced to the new guideline at §2B1.5 if the resulting offense level under it would be greater than under §2B1.1. When a case involving a cultural heritage resource is sentenced under §2B1.1, loss attributable to that cultural heritage resource is to be determined using the definition of "value of the cultural heritage resource" from §2B1.5.
The Commission recognizes that the full implementation of this new guideline for the most serious offenders often will be limited in its application because of the extremely low statutory maxima of some of the potentially applicable statutes, such as the criminal provisions of ARPA, NAGPRA, and 18 U.S.C. § 1163 (covering the theft of tribal property). Currently ARPA has either a one year or two year statutory maximum term of imprisonment for the first offense, depending on whether the value exceeds $500, and NAGPRA has a statutory maximum term of imprisonment of one year for the first offense irrespective of value. These statutes all have five year statutory maximum terms of imprisonment for second and subsequent offenses. Consequently, the statutory ceiling may limit the full range of proportionate guideline sentencing, but the Commission has promulgated this new guideline to cover the wide variety of potential offense conduct that can occur in connection with cultural heritage resources. The Commission has recommended to Congress that the statutory maximum terms of imprisonment for these offenses be raised appropriately.
Effective Date: The effective date of this amendment is November 1, 2002.