AMENDMENT 663
The Commentary to §2A1.1 captioned "Application Notes" is amended by striking Notes 1 and 2 as follows:
"1. The Commission has concluded that in the absence of capital punishment life imprisonment is the appropriate punishment for premeditated killing. However, this guideline also applies when death results from the commission of certain felonies. Life imprisonment is not necessarily appropriate in all such situations. For example, if in robbing a bank, the defendant merely passed a note to the teller, as a result of which she had a heart attack and died, a sentence of life imprisonment clearly would not be appropriate.
If the defendant did not cause the death intentionally or knowingly, a downward departure may be warranted. The extent of the departure should be based upon the defendant’s state of mind (e.g., recklessness or negligence), the degree of risk inherent in the conduct, and the nature of the underlying offense conduct. However, the Commission does not envision that departure below that specified in §2A1.2 (Second Degree Murder) is likely to be appropriate. Also, because death obviously is an aggravating factor, it necessarily would be inappropriate to impose a sentence at a level below that which the guideline for the underlying offense requires in the absence of death.
2. If the defendant is convicted under 21 U.S.C. § 848(e), a sentence of death may be imposed under the specific provisions contained in that statute. This guideline applies when a sentence of death is not imposed.",
and inserting the following:
"1. Applicability of Guideline.—This guideline applies in cases of premeditated killing. This guideline also applies when death results from the commission of certain felonies. For example, this guideline may be applied as a result of a cross reference (e.g., a kidnapping in which death occurs), or in cases in which the offense level of a guideline is calculated using the underlying crime (e.g., murder in aid of racketeering).
2. Imposition of Life Sentence.—
(A) Offenses Involving Premeditated Killing.—In the case of premeditated killing, life imprisonment is the appropriate sentence if a sentence of death is not imposed. A downward departure would not be appropriate in such a case. A downward departure from a mandatory statutory term of life imprisonment is permissible only in cases in which the government files a motion for a downward departure for the defendant’s substantial assistance, as provided in 18 U.S.C. § 3553(e).
(B) Felony Murder.—If the defendant did not cause the death intentionally or knowingly, a downward departure may be warranted. For example, a downward departure may be warranted if in robbing a bank, the defendant merely passed a note to the teller, as a result of which the teller had a heart attack and died. The extent of the departure should be based upon the defendant’s state of mind (e.g., recklessness or negligence), the degree of risk inherent in the conduct, and the nature of the underlying offense conduct. However, departure below the minimum guideline sentence provided for second degree murder in §2A1.2 (Second Degree Murder) is not likely to be appropriate. Also, because death obviously is an aggravating factor, it necessarily would be inappropriate to impose a sentence at a level below that which the guideline for the underlying offense requires in the absence of death.
3. Applicability of Guideline When Death Sentence Not Imposed.—If the defendant is sentenced pursuant to 18 U.S.C. § 3591 et seq. or 21 U.S.C. § 848(e), a sentence of death may be imposed under the specific provisions contained in that statute. This guideline applies when a sentence of death is not imposed under those specific provisions.".
Section 2A1.2(a) is amended by striking "33" and inserting "38".
Section 2A1.2 is amended by striking the commentary captioned "Background" as follows:
"Background: The maximum term of imprisonment authorized by statute for second degree murder is life.",
and inserting the following:
"Application Note:
1. Upward Departure Provision.—If the defendant’s conduct was exceptionally heinous, cruel, brutal, or degrading to the victim, an upward departure may be warranted. See §5K2.8 (Extreme Conduct).".
Section 2A1.3(a) is amended by striking "25" and inserting "29".
Section 2A1.3 is amended by striking the commentary captioned "Background" as follows:
"Background: The maximum term of imprisonment authorized by statute for voluntary manslaughter is ten years.".
Section 2A1.4(a) is amended in subdivision (1) by striking "conduct was criminally negligent" and inserting "offense involved criminally negligent conduct"; and by striking subdivision (2) as follows:
"(2) 18, if the conduct was reckless.",
and inserting the following:
"(2) (Apply the greater):
(A) 18, if the offense involved reckless conduct; or
(B) 22, if the offense involved the reckless operation of a means of transportation.".
Section 2A1.4 is amended by adding at the end the following:
"(b) Special Instruction
(1) If the offense involved the involuntary manslaughter of more than one person, Chapter Three, Part D (Multiple Counts) shall be applied as if the involuntary manslaughter of each person had been contained in a separate count of conviction.".
The Commentary to §2A1.4 captioned "Application Notes" is amended in the heading by striking "Notes" and inserting "Note"; and by striking Notes 1 and 2 as follows:
"1. ‘Reckless’ refers to a situation in which the defendant was aware of the risk created by his conduct and the risk was of such a nature and degree that to disregard that risk constituted a gross deviation from the standard of care that a reasonable person would exercise in such a situation. The term thus includes all, or nearly all, convictions for involuntary manslaughter under 18 U.S.C. § 1112. A homicide resulting from driving, or similarly dangerous actions, while under the influence of alcohol or drugs ordinarily should be treated as reckless.
2. ‘Criminally negligent’ refers to conduct that involves a gross deviation from the standard of care that a reasonable person would exercise under the circumstances, but which is not reckless. Offenses with this characteristic usually will be encountered as assimilative crimes.".
and inserting the following:
"1. Definitions.—For purposes of this guideline:
‘Criminally negligent’ means conduct that involves a gross deviation from the standard of care that a reasonable person would exercise under the circumstances, but which is not reckless. Offenses with this characteristic usually will be encountered as assimilative crimes.
‘Means of transportation’ includes a motor vehicle (including an automobile or a boat) and a mass transportation vehicle. ‘Mass transportation’ has the meaning given that term in 18 U.S.C. § 1993(c)(5).
‘Reckless’ means a situation in which the defendant was aware of the risk created by his conduct and the risk was of such a nature and degree that to disregard that risk constituted a gross deviation from the standard of care that a reasonable person would exercise in such a situation. ‘Reckless’ includes all, or nearly all, convictions for involuntary manslaughter under 18 U.S.C. § 1112. A homicide resulting from driving a means of transportation, or similarly dangerous actions, while under the influence of alcohol or drugs ordinarily should be treated as reckless.".
Section 2A1.5(a) is amended by striking "28" and inserting "33".
Section 2A2.1(a) is amended in subdivision (1) by striking "28" and inserting "33"; and in subdivision (2) by striking "22" and inserting "27".
Section 2A2.1(b)(1) is amended by striking "(A) If" and inserting "If (A)"; and by striking "if" each place it appears.
The Commentary to §2A2.1 captioned "Application Notes" is amended by striking Notes 1 through 3 as follows:
"1. Definitions of ‘serious bodily injury’ and ‘permanent or life-threatening bodily injury’ are found in the Commentary to §1B1.1 (Application Instructions).
2. ‘First degree murder,’ as used in subsection (a)(1), means conduct that, if committed within the special maritime and territorial jurisdiction of the United States, would constitute first degree murder under 18 U.S.C. § 1111.
3. If the offense created a substantial risk of death or serious bodily injury to more than one person, an upward departure may be warranted.",
and inserting the following:
"1. Definitions.—For purposes of this guideline:
‘First degree murder’ means conduct that, if committed within the special maritime and territorial jurisdiction of the United States, would constitute first degree murder under 18 U.S.C. § 1111.
‘Permanent or life-threatening bodily injury’ and ‘serious bodily injury’ have the meaning given those terms in Application Note 1 of the Commentary to §1B1.1 (Application Instructions).
2. Upward Departure Provision.—If the offense created a substantial risk of death or serious bodily injury to more than one person, an upward departure may be warranted.".
Section 2A2.2(a) is amended by striking "15" and inserting "14".
Section 2A2.2(b)(2) is amended by striking "(A) If" and inserting "If (A)"; and by striking "if" each place it appears.
Section 2A2.2(b)(3) is amended in subdivision (A) by striking "2" and inserting "3"; in subdivision (B) by striking "4" and inserting "5"; in subdivision (C) by striking "6" and inserting "7"; in subdivision (D) by striking "3" and inserting "4"; and in subdivision (E) by striking "5" and inserting "6".
Section 2A2.2(b)(3) is amended by striking "Provided, however, that the cumulative adjustments from (2) and (3) shall not exceed 9 levels.", and inserting "However, the cumulative adjustments from application of subdivisions (2) and (3) shall not exceed 10 levels.".
Section 2A2.2(b) is amended by adding at the end the following:
"(6) If the defendant was convicted under 18 U.S.C. § 111(b) or § 115, increase by 2 levels.".
The Commentary to §2A2.2 captioned "Application Notes" is amended by striking Note 2 as follows:
"2. Application of Subsection (b)(2).—In a case involving a dangerous weapon with intent to cause bodily injury, the court shall apply both the base offense level and subsection (b)(2).".
The Commentary to §2A2.2 captioned "Application Notes" is amended in Note 3 by striking:
"3. More than Minimal Planning.—For purposes of subsection (b)(1),",
and inserting the following:
"2. Application of Subsection (b)(1).—For purposes of subsection (b)(1),".
The Commentary to §2A2.2 captioned "Application Notes" is amended by adding at the end the following:
"3. Application of Subsection (b)(2).—In a case involving a dangerous weapon with intent to cause bodily injury, the court shall apply both the base offense level and subsection (b)(2).
4. Application of Official Victim Adjustment.—If subsection (b)(6) applies, §3A1.2 (Official Victim) also shall apply.".
The Commentary to §2A2.2 captioned "Background" is amended by adding at the end the following:
" Subsection (b)(6) implements the directive to the Commission in subsection 11008(e) of the 21st Century Department of Justice Appropriations Act (the ‘Act’), Public Law 107–273. The enhancement in subsection (b)(6) is cumulative to the adjustment in §3A1.2 (Official Victim) in order to address adequately the directive in section 11008(e)(2)(D) of the Act, which provides that the Commission shall consider ‘the extent to which sentencing enhancements within the Federal guidelines and the authority of the court to impose a sentence in excess of the applicable guideline range are adequate to ensure punishment at or near the maximum penalty for the most egregious conduct covered by’ 18 U.S.C. §§ 111 and 115.".
Section 2A2.3(a) is amended in subdivision (1) by striking "6" and inserting "7", and by striking "conduct" and inserting "offense"; and in subdivision (2) by striking "3" and inserting "4".
Section 2A2.3(b)(1) is amended by inserting "(A) the victim sustained bodily injury, increase by 2 levels; or (B)" after "If".
Section 2A2.3 is amended by adding at the end the following:
"(c) Cross Reference
(1) If the conduct constituted aggravated assault, apply §2A2.2 (Aggravated Assault).".
The Commentary to §2A2.3 captioned "Application Notes" is amended by striking Notes 1 through 3 as follows:
"1. ‘Minor assault’ means a misdemeanor assault, or a felonious assault not covered by §2A2.2.
2. Definitions of ‘firearm’ and ‘dangerous weapon’ are found in the Commentary to §1B1.1 (Application Instructions).
3. ‘Substantial bodily injury’ means ‘bodily injury which involves - (A) a temporary but substantial disfigurement; or (B) a temporary but substantial loss or impairment of the function of any bodily member, organ, or mental faculty.’ 18 U.S.C. § 113(b)(1).",
and inserting the following:
"1. Definitions.—For purposes of this guideline:
‘Bodily injury’, ‘dangerous weapon’, and ‘firearm’ have the meaning given those terms in Application Note 1 of the Commentary to §1B1.1 (Application Instructions).
‘Minor assault’ means a misdemeanor assault, or a felonious assault not covered by §2A2.2 (Aggravated Assault).
‘Substantial bodily injury’ means ‘bodily injury which involves (A) a temporary but substantial disfigurement; or (B) a temporary but substantial loss or impairment of the function of any bodily member, organ, or mental faculty.’ See 18 U.S.C. § 113(b)(1).
2. Application of Subsection (b)(1).—Conduct that forms the basis for application of subsection (a)(1) also may form the basis for application of the enhancement in subsection (b)(1)(A) or (B).".
Section 2A2.4(a) is amended by striking "6" and inserting "10".
Section 2A2.4(b) is amended by striking "Characteristic" and inserting "Characteristics"; by striking in subdivision (1) "If the conduct involved physical contact, or if" and inserting "If (A) the offense involved physical contact; or (B)"; and by adding at the end the following:
"(2) If the victim sustained bodily injury, increase by 2 levels.".
The Commentary to §2A2.4 captioned "Application Notes" is amended by striking Notes 1 and 2 as follows:
"1. The base offense level reflects the fact that the victim was a governmental officer performing official duties. Therefore, do not apply §3A1.2 (Official Victim) unless subsection (c) requires the offense level to be determined under §2A2.2 (Aggravated Assault). Conversely, the base offense level does not reflect the possibility that the defendant may create a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement official (although an offense under 18 U.S.C. § 758 for fleeing or evading a law enforcement checkpoint at high speed will often, but not always, involve the creation of that risk). If the defendant creates that risk and no higher guideline adjustment is applicable for the conduct creating the risk, apply §3C1.2 (Reckless Endangerment During Flight).
2. Definitions of ‘firearm’ and ‘dangerous weapon’ are found in the Commentary to §1B1.1 (Application Instructions).",
and inserting the following:
"1. Definitions.—For purposes of this guideline, ‘bodily injury’, ‘dangerous weapon’, and ‘firearm’ have the meaning given those terms in Application Note 1 of the Commentary to §1B1.1 (Application Instructions).
2. Application of Certain Chapter Three Adjustments.—The base offense level incorporates the fact that the victim was a governmental officer performing official duties. Therefore, do not apply §3A1.2 (Official Victim) unless, pursuant to subsection (c), the offense level is determined under §2A2.2 (Aggravated Assault). Conversely, the base offense level does not incorporate the possibility that the defendant may create a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement official (although an offense under 18 U.S.C. § 758 for fleeing or evading a law enforcement checkpoint at high speed will often, but not always, involve the creation of that risk). If the defendant creates that risk and no higher guideline adjustment is applicable for the conduct creating the risk, apply §3C1.2 (Reckless Endangerment During Flight).".
The Commentary to §2A2.4 captioned "Application Notes" is amended in Note 3 by inserting "Upward Departure Provision.—" before "The base".
The Commentary to §2A2.4 captioned "Background" is amended by striking the last sentence as follows:
"The guideline has been drafted to provide offense levels that are identical to those otherwise provided for assaults involving an official victim; when no assault is involved, the offense level is 6.".
Section 3A1.2 is amended by striking:
"§3A1.2. Official Victim
(a) If (1) the victim was (A) a government officer or employee; (B) a former government officer or employee; or (C) a member of the immediate family of a person described in subdivision (A) or (B); and (2) the offense of conviction was motivated by such status, increase by 3 levels.
(b) If, in a manner creating a substantial risk of serious bodily injury, the defendant or a person for whose conduct the defendant is otherwise accountable—
(1) knowing or having reasonable cause to believe that a person was a law enforcement officer, assaulted such officer during the course of the offense or immediate flight therefrom; or
(2) knowing or having reasonable cause to believe that a person was a prison official, assaulted such official while the defendant (or a person for whose conduct the defendant is otherwise accountable) was in the custody or control of a prison or other correctional facility,
increase by 3 levels.",
and inserting:
"§3A1.2. Official Victim
(Apply the greatest):
(a) If (1) the victim was (A) a government officer or employee; (B) a former government officer or employee; or (C) a member of the immediate family of a person described in subdivision (A) or (B); and (2) the offense of conviction was motivated by such status, increase by 3 levels.
(b) If subsection (a)(1) and (2) apply, and the applicable Chapter Two guideline is from Chapter Two, Part A (Offenses Against the Person), increase by 6 levels.
(c) If, in a manner creating a substantial risk of serious bodily injury, the defendant or a person for whose conduct the defendant is otherwise accountable—
(1) knowing or having reasonable cause to believe that a person was a law enforcement officer, assaulted such officer during the course of the offense or immediate flight therefrom; or
(2) knowing or having reasonable cause to believe that a person was a prison official, assaulted such official while the defendant (or a person for whose conduct the defendant is otherwise accountable) was in the custody or control of a prison or other correctional facility,
increase by 6 levels.".
The Commentary to §3A1.2 captioned "Application Notes" is amended in Note 2 by striking the second sentence as follows: "In most cases, the offenses to which subdivision (a) will apply will be from Chapter Two, Part A (Offenses Against the Person)."; and by striking in the third sentence ", Part A,".
The Commentary to §3A1.2 captioned "Application Notes" is amended in Note 3 by striking "Subsection (a)" and inserting "Subsections (a) and (b)"; and by striking "in subsection (a)" and inserting ", for purposes of subsections (a) and (b),".
The Commentary to §3A1.2 captioned "Application Notes" is amended in Note 4 by striking "Subsection (b)" each place it appears and inserting "Subsection (c)"; by striking "subsection (b)" each place it appears and inserting "subsection (c)"; and by striking "and control" each place it appears and inserting "or control".
The Commentary to §3A1.2 captioned "Application Notes" is amended by striking Note 5 as follows:
"5. Upward Departure Provision.—Certain high level officials, e.g., the President and Vice President, although covered by this section, do not represent the heartland of the conduct covered. An upward departure to reflect the potential disruption of the governmental function in such cases typically would be warranted.",
and inserting the following:
"5. Upward Departure Provision.—If the official victim is an exceptionally high-level official, such as the President or the Vice President of the United States, an upward departure may be warranted due to the potential disruption of the governmental function.".
Reason for Amendment: This amendment increases the base offense levels for the homicide and manslaughter guidelines to address longstanding proportionality concerns and new proportionality issues prompted by changes to other Chapter Two guidelines pursuant to the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, Pub. L. 108–21 (the "PROTECT Act"). It also amends the assault guidelines and the adjustment at §3A1.2 (Official Victim) to implement the directive in section 11008(e) of the 21st Century Department of Justice Appropriations Authorization Act, Pub. L. 107–273 (the "Act").
First, this amendment makes a number of changes to the homicide guidelines. The amendment revises the commentary in guideline §2A1.1 (First Degree Murder) and deletes outdated language. One effect of this revision is to clarify that a downward departure from a mandatory statutory sentence of life imprisonment is permissible only in cases in which the government files a motion for a downward departure for the defendant’s substantial assistance, as provided in 18 U.S.C. § 3553(e).
In addition, the Commission received public comment that the guideline penalties for all homicides, other than for first degree murder, were inadequate and in need of review. An examination of the homicide and manslaughter guidelines also was prompted by section 104 of the PROTECT Act, which directed the Commission to increase the base offense level for §2A4.1 (Kidnapping, Abduction, Unlawful Restraint). The Commission increased the base offense level for kidnapping by eight levels, from base offense level 24 to base offense level 32, effective May 30, 2003. This increase brought kidnapping without injury to within one level of the base offense of level 33 for second degree murder. The Commission examined data on second degree murder offenses and found that in 2002, courts departed upward from the guideline range in 34.3% of the cases. The Commission also received public comment expressing concern that an individual convicted of second degree murder who accepted responsibility might serve as little as eight years’ imprisonment. By increasing the base offense level in §2A1.2 (Second Degree Murder) to level 38, the Commission has established an approximate 20-year sentence of imprisonment for second degree murder.
Data also showed a high level of upward departure sentences for some other homicide offenses, such as voluntary manslaughter, which had a 28.6% upward departure rate in 2002. Based upon such indications that the sentences may be inadequate for these offenses, the Commission increased the base offense levels of many of the homicide guidelines to punish them more appropriately and with an eye toward restoring the proportionality found in the original guidelines. For example, the original base offense level of 28 for attempted first degree murder, §2A2.1 (Assault with Intent to Commit Murder; Attempted Murder) is five levels lower than the original base offense level of level 33 for second degree murder. In this amendment, the five-level increase from a base offense level of level 28 to level 33 for attempted first degree murder mirrors the five-level increase for second degree murder from offense level of level 33 to level 38 and maintains the five-level difference that exists between the two. The amendment increases the base offense levels in the guidelines for §§2A1.2, 2A1.3 (Voluntary Manslaughter), 2A1.5 (Conspiracy or Solicitation to Commit Murder), and 2A2.1.
Additionally, the amendment adds a third alternative base offense level in §2A1.4 (Involuntary Manslaughter) of level 22 for reckless involuntary manslaughter offenses that involved the reckless operation of a means of transportation. This new offense level completes work undertaken in the previous amendment cycle to address disparities between federal and state sentences for vehicular manslaughter and to account for the 1994 increase in the statutory maximum term of imprisonment from three to six years. The new alternative offense level focusing on the reckless operation of a means of transportation addresses concerns raised by some members of Congress and comports with a recommendation from the Commission’s Native American Advisory Group that vehicular manslaughter involving alcohol or drugs should be sentenced at offense level 22. The amendment also adds a special instruction to apply §3D1.2 (Groups of Closely Related Counts) as if there had been a separate count of conviction for each victim in cases in which more than one victim died. The purpose of the instruction is to ensure an incremental increase in punishment for single count offenses involving multiple victims.
Second, this amendment makes a number of changes to the assault guidelines and the Chapter Three adjustment relating to official victims, to implement the congressional directive and the changes in statutory maximum terms of imprisonment in the 21st Century Department of Justice Appropriations Authorization Act. The Act increased the statutory maximum term of imprisonment for a number of offenses against current or former officers or employees of the United States, including Federal judges and magistrate judges, their families, or persons assisting in the performance of those official duties, or offenses committed on account of those duties. In response to the directive, the Commission added a new specific offense characteristic in §2A2.2 (Aggravated Assault) to provide a two-level increase if the defendant was convicted under 18 U.S.C. § 111(b) or § 115. The Commission also amended the guideline to decrease the base offense level from level 15 to level 14, based upon information received from the Native American Advisory Group and studies indicating that federal aggravated assault sentences generally are more severe than many state aggravated assault sentences. To ensure that individuals who cause bodily injury to victims do not benefit from this decrease in the base offense level, the specific offense characteristics addressing degrees of bodily injury each were increased by one level. To maintain proportionality, reflect increased statutory penalties, and comply with the directive, the two non-aggravated assault guidelines also were amended. For §2A2.3 (Minor Assault), the alternative base offense levels each were increased by one level, a specific offense characteristic was added to provide a two-level enhancement if the victim sustained bodily injury, and a cross-reference to §2A2.2 was added. Similarly, §2A2.4 (Obstructing or Impeding Officers) was amended by increasing the base offense level to level 10, and by adding a specific offense characteristic providing a two-level increase if the victim sustained bodily injury.
The amendment restructures §3A1.2 (Official Victim) and provides a two-tiered adjustment. The amendment maintains the three-level adjustment for offenses motivated by the status of the official victim, but increases the adjustment to six levels if that defendant’s offense guideline was from Chapter Two, Part A (Offenses Against the Person). For example, a threat against a federal judge sentenced pursuant to §2A6.1 (Threatening or Harassing Communications) that is calculated at base offense level 12 could have received, before this amendment, a three-level enhancement under §3A1.2, which would have resulted in an adjusted offense level of level 15 and a guideline range of 18 to 24 months. Under this amendment, the defendant could receive a six-level adjustment, resulting in an enhanced offense level of level 18 and a guideline range of 27 to 33 months. The six level enhancement also applies to assaultive conduct against law enforcement officers or prison officials if the defendant committed the assault in a manner creating a substantial risk of serious bodily injury. This increase comports with the directive in the Act to "ensure punishment at or near the maximum penalty for the most egregious conduct covered by the offense" for offenses against federal officers, officials and employees.
Effective Date: The effective date of this amendment is November 1, 2004.