Amendment 659

AMENDMENT 659

Chapter Three, Part B, is amended by adding at the end the following new guideline:

"§3B1.5. Use of Body Armor in Drug Trafficking Crimes and Crimes of Violence

If—

(1) the defendant was convicted of a drug trafficking crime or a crime of violence; and

(2) (apply the greater)—

(A) the offense involved the use of body armor, increase by 2 levels; or

(B) the defendant used body armor during the commission of the offense, in preparation for the offense, or in an attempt to avoid apprehension for the offense, increase by 4 levels.

Commentary

Application Notes:

1. Definitions.—For purposes of this guideline:

‘Body armor’ means any product sold or offered for sale, in interstate or foreign commerce, as personal protective body covering intended to protect against gunfire, regardless of whether the product is to be worn alone or is sold as a complement to another product or garment. See 18 U.S.C. § 921(a)(35).

‘Crime of violence’ has the meaning given that term in 18 U.S.C. § 16.

‘Drug trafficking crime’ has the meaning given that term in 18 U.S.C. § 924(c)(2).

‘Offense’ has the meaning given that term in Application Note 1 of the Commentary to §1B1.1 (Application Instructions).

‘Use’ means (A) active employment in a manner to protect the person from gunfire; or (B) use as a means of bartering. ‘Use’ does not mean mere possession (e.g., ‘use’ does not mean that the body armor was found in the trunk of the car but not used actively as protection). ‘Used’ means put into ‘use’ as defined in this paragraph.

2. Application of Subdivision (2)(B).—Consistent with §1B1.3 (Relevant Conduct), the term ‘defendant’, for purposes of subdivision (2)(B), limits the accountability of the defendant to the defendant’s own conduct and conduct that the defendant aided or abetted, counseled, commanded, induced, procured, or willfully caused.

Background: This guideline implements the directive in the James Guelff and Chris McCurley Body Armor Act of 2002 (section 11009(d) of the 21^st Century Department of Justice Appropriations Authorization Act, Pub. L. 107–273).".

Reason for Amendment: This amendment responds to the directive in section 11009 of the 21st Century Department of Justice Appropriations Authorization Act (the "Act"), Pub. L. 107–273. The directive requires the Sentencing Commission to review and amend the guidelines, as appropriate, to provide an appropriate sentencing enhancement for any crime of violence (as defined in 18 U.S.C. § 16) or drug trafficking crime (as defined in 18 U.S.C. § 924(c)) (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) in which the defendant used body armor. The Act included a sense of Congress that any such enhancement should be at least two levels.

In response to the directive, the amendment creates a new Chapter Three adjustment at §3B1.5 (Use of Body Armor in Drug Trafficking Crimes and Crimes of Violence). The new adjustment provides for the greater of a two level adjustment if the defendant was convicted of a crime of violence or a drug trafficking crime and the offense involved the use of body armor, or a four level adjustment if the defendant used body armor in preparation for, during the commission of, or in an attempt to avoid apprehension for, the offense.

An application note defines "drug trafficking crime" (as defined in 18 U.S.C. § 924(e)(2)). This definition includes any felony punishable under the Controlled Substances Act. The application note also defines "crime of violence" (as defined in 18 U.S.C. § 16). This definition includes offenses that involve the use or attempted use of physical force against property as well as persons. Both of these definitions are somewhat broader than the definitions of "crime of violence" and "drug trafficking offense" used in a number of other guidelines. The definition of "body armor" is the same as the statutory definition provided in 18 U.S.C. § 921(a)(35).

An application note makes clear that in order for §3B1.5 to apply, the body armor must be used, i.e., actively employed either in a manner to protect the person from gunfire or as a means of bartering. Mere possession is insufficient to trigger the adjustment.

Another application note explains that in order for the heightened, four level adjustment to apply, the defendant must have used the body armor or aided, abetted, counseled, commanded, induced, procured, or willfully caused someone else to use the body armor.