AMENDMENT 700
The Commentary to §2A1.1 captioned "Statutory Provisions", as amended by Amendment 699, is further amended by inserting "2282A," after "2199,".
The Commentary to §2A1.2 captioned "Statutory Provisions", as amended by Amendment 699, is further amended by inserting "2282A," after "2199,".
The Commentary to §2B1.1 captioned "Statutory Provisions", as amended by Amendment 699, is further amended by inserting "2282A, 2282B," after "2113(b),".
The Commentary to §2B1.5 captioned "Statutory Provisions" is amended by inserting "554," before "641,".
Chapter Two, Part D, Subpart One, is amended by adding at the end the following new guideline and accompanying commentary:
"§2D1.14. Narco-Terrorism
(a) Base Offense Level:
(1) The offense level from §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) applicable to the underlying offense, except that §2D1.1(a)(3)(A), (a)(3)(B), and (b)(11) shall not apply.
(b) Specific Offense Characteristic
(1) If §3A1.4 (Terrorism) does not apply, increase by 6 levels.
Commentary
Statutory Provision: 21 U.S.C. § 960a.".
Chapter Two, Part E, Subpart Four, is amended in the heading by adding at the end "AND SMOKELESS TOBACCO".
Section 2E4.1 is amended in the heading by adding at the end "and Smokeless Tobacco".
The Commentary to §2E4.1 captioned "Background" is amended by striking "60,000" and inserting "10,000".
The Commentary to §2K1.3 captioned "Statutory Provisions" is amended by inserting ", 2283" after "1716".
Section 2K1.4 is amended in subsections (a)(1) and (a)(2) by striking "a ferry," each place it appears and inserting "a maritime facility, a vessel, or a vessel’s cargo,"; in subsection (a)(2) by striking "or" the last place it appears; by redesignating subsection (a)(3) as subsection (a)(4); and by inserting the following after subsection (a)(2):
"(3) 16, if the offense involved the destruction of or tampering with aids to maritime navigation; or".
Section 2K1.4(b)(2) is amended by striking "(a)(3)" and inserting "(a)(4)".
The Commentary to §2K1.4 captioned "Statutory Provisions", as amended by Amendment 699, is further amended by inserting "2282A, 2282B," after "2275,".
The Commentary to §2K1.4 captioned "Application Notes" is amended in Note 1 by inserting after "For purposes of this guideline:" the following paragraph:
"‘Aids to maritime navigation’ means any device external to a vessel intended to assist the navigator to determine position or save course, or to warn of dangers or obstructions to navigation.";
by inserting after "destructive device." the following paragraph:
"‘Maritime facility’ means any structure or facility of any kind located in, on, under, or adjacent to any waters subject to the jurisdiction of the United States and used, operated, or maintained by a public or private entity, including any contiguous or adjoining property under common ownership or operation.";
by striking "1993(c)(5)" and inserting "1992(d)(7)"; and by adding at the end the following:
"‘Vessel’ includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.".
The Commentary to §2M5.2 captioned "Statutory Provisions" is amended by inserting "18 U.S.C. § 554;" before "22 U.S.C. §§ 2778, 2780.".
Section 2M5.3 is amended in the heading by inserting "Specially Designated Global Terrorists, or" after "Organizations or"
The Commentary to §2M5.3 captioned "Statutory Provisions" is amended by inserting "2283, 2284," after "18 U.S.C. §§"; and by striking the period at the end and inserting "; 50 U.S.C. §§ 1701, 1705.".
The Commentary to §2M5.3 captioned "Application Notes" is amended in Note 1 by adding at the end the following paragraph:
"‘Specially designated global terrorist’ has the meaning given that term in 31 C.F.R. § 594.513.".
Section 2M6.1 is amended in the heading by striking "Production, Development, Acquisition, Stockpiling, Alteration, Use, Transfer, or Possession of" and inserting "Activity Involving".
The Commentary to §2M6.1 captioned "Statutory Provisions", as amended by Amendment 699, is further amended by inserting "2283," before "2291,".
The Commentary to §2Q2.1 captioned "Statutory Provisions" is amended by inserting "§" before "545" and by inserting ", 554" after "545".
The Commentary to §2Q2.1 captioned "Background" is amended by striking "§ 545 where" and inserting "§§ 545 and 554 if".
The Commentary to §2X1.1 captioned "Statutory Provisions" is amended by inserting ", 2282A, 2282B" after "2271".
The Commentary to §2X2.1 captioned "Statutory Provisions" is amended by inserting "2284," after "2,".
The Commentary to §2X3.1 captioned "Statutory Provisions" is amended by inserting "2284," after "1072,".
Chapter Two, Part X is amended by adding at the end the following new subpart, guideline, and accompanying commentary:
"7. OFFENSES INVOLVING BORDER TUNNELS
§2X7.1. Border Tunnels and Subterranean Passages
(a) Base Offense Level:
(1) If the defendant was convicted under 18 U.S.C. § 554(c), 4 plus the offense level applicable to the underlying smuggling offense. If the resulting offense level is less than level 16, increase to level 16.
(2) 16, if the defendant was convicted under 18 U.S.C. § 554(a); or
(3) 8, if the defendant was convicted under 18 U.S.C. § 554(b).
Commentary
Statutory Provision: 18 U.S.C. § 554.
Application Note:
1. Definition.—For purposes of this guideline, ‘underlying smuggling offense’ means the smuggling offense the defendant committed through the use of the tunnel or subterranean passage.".
Chapter Five, Part K is amended by adding at the end the following new policy statement and accompanying commentary:
"§5K2.24. Commission of Offense While Wearing or Displaying Unauthorized or Counterfeit Insignia or Uniform (Policy Statement)
If, during the commission of the offense, the defendant wore or displayed an official, or counterfeit official, insignia or uniform received in violation of 18 U.S.C. § 716, an upward departure may be warranted.
Commentary
Application Note:
1. Definition.—For purposes of this policy statement, ‘official insignia or uniform’ has the meaning given that term in 18 U.S.C. § 716(c)(3).".
Appendix A (Statutory Index) is amended by inserting after the line referenced to 18 U.S.C. § 553(a)(2) the following:
"18 U.S.C. § 554
(Border tunnels and passages) 2X7.1
18 U.S.C. § 554
(Smuggling goods from
the United States) 2B1.5, 2M5.2, 2Q2.1".
Appendix A (Statutory Index), as amended by Amendment 699, is further amended by inserting after the line referenced to 18 U.S.C. § 2281 the following:
"18 U.S.C. § 2282A 2A1.1, 2A1.2, 2B1.1,
2K1.4, 2X1.1
18 U.S.C. § 2282B 2B1.1, 2K1.4, 2X1.1
18 U.S.C. § 2283 2K1.3, 2M5.3, 2M6.1
18 U.S.C. § 2284 2M5.3, 2X2.1, 2X3.1".
Appendix A (Statutory Index) is amended in the line referenced to 18 U.S.C. § 2339 by inserting "2M5.3," before "2X2.1";
by inserting after the line referenced to 21 U.S.C. § 960(d)(7) the following:
"21 U.S.C. § 960a 2D1.14".
by inserting after the line referenced to 50 U.S.C. § 783(c) the following:
"50 U.S.C. § 1701 2M5.1, 2M5.2, 2M5.3
50 U.S.C. § 1705 2M5.3"; and
by striking the following:
"50 U.S.C. App. § 1701 2M5.1, 2M5.2".
Reason for Amendment: This amendment implements the USA PATRIOT Improvement and Reauthorization Act of 2005 (the "PATRIOT Reauthorization Act"), Pub. L. 109–177, and the Department of Homeland Security Appropriations Act, 2007 (the "Homeland Security Act"), Pub. L. 109–295.
First, the amendment addresses section 122 of the PATRIOT Reauthorization Act, which created a new offense at 21 U.S.C. § 960a covering narco-terrorism. This new offense prohibits engaging in conduct that would be covered under 21 U.S.C. § 841(a) if committed under the jurisdiction of the United States, knowing or intending to provide, directly or indirectly, anything of pecuniary value to any person or organization that has engaged or engages in terrorist activity (as defined in section 212(a)(3)(B) of the Immigration and Nationality Act) or terrorism (as defined in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989 (This act is made up of separate parts divided by fiscal year)). The penalty is not less than twice the statutory minimum punishment under 21 U.S.C. § 841(b)(1) and not more than life. Section 960a also provides a mandatory term of supervised release of at least five years.
The amendment creates a new guideline at §2D1.14 (Narco-Terrorism) because an offense under 21 U.S.C. § 960a differs from basic drug offenses because it involves trafficking that benefits terrorist activity. The guideline also provides that the base offense level is the offense level determined under §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) for the underlying offense, except that the "mitigating role cap" in §2D1.1(a)(3)(A) and (B) and the two-level reduction for meeting the criteria set forth in subdivisions (1)-(5) of subsection (a) of §5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases) shall not apply. The Commission determined that these exclusions are appropriate to reflect that this is not a typical drug offense, in that an individual convicted under this provision must have had knowledge that the person or organization receiving the funds or support generated by the drug trafficking "has engaged or engages in terrorist activity . . . or terrorism . . . ." The guideline also contains a specific offense characteristic that provides a six-level increase if the adjustment in §3A1.4 (Terrorism) does not apply. This six-level increase fully effectuates the statute’s doubling of the minimum punishment for the underlying drug offense, while avoiding potential double counting with the 12-level adjustment at §3A1.4. The amendment also provides a corresponding reference for the new offense to §2D1.14 in Appendix A (Statutory Index).
Second, the amendment responds to the directive in section 551 of the Homeland Security Act, which created a new offense in 18 U.S.C. § 554 regarding the construction of border tunnels and subterranean passages that cross the international boundary between the United States and another country. Section 551(c) of the Homeland Security Act directed the Commission to promulgate or amend the guidelines to provide for increased penalties for persons convicted of offenses under 18 U.S.C. § 554 and required the Commission to consider a number of factors. Section 554(a) prohibits the construction or financing of such tunnels and passages and provides a statutory maximum term of imprisonment of 20 years. Section 554(b) prohibits the knowing or reckless disregard of the construction on land the person owns or controls and provides a statutory maximum term of imprisonment of 10 years. Section 554(c) prohibits the use of the tunnels to smuggle an alien, goods (in violation of 18 U.S.C. § 545), controlled substances, weapons of mass destruction (including biological weapons), or a member of a terrorist organization (defined in 18 U.S.C. § 2339B(g)(6)) and provides a penalty of twice the maximum term of imprisonment that otherwise would have been applicable had the unlawful activity not made use of the tunnel or passage.
The amendment creates a new guideline at §2X7.1 (Border Tunnels and Subterranean Passages) for convictions under 18 U.S.C. § 554. The new guideline provides that a conviction under 18 U.S.C. § 554(a) receives a base offense level 16, which is commensurate with certain other offenses with statutory maximum terms of imprisonment of 20 years and ensures a sentence of imprisonment. A conviction under 18 U.S.C. § 554(c) will receive a four-level increase over the offense level applicable to the underlying smuggling offense, which ensures that the seriousness of the underlying offense is the primary measure of offense severity. The four-level increase also satisfies the directive’s instruction to account for the aggravating nature of the use of a tunnel or subterranean passage to breach the border to accomplish the smuggling offense and effectuates the statute’s doubling of the statutory maximum penalty. A conviction under 18 U.S.C. § 554(b) receives a base offense level of 8, which reflects the less aggravated nature of this offense.
Third, the amendment addresses other new offenses created by the PATRIOT Reauthorization Act. Based on an assessment of similar offenses already covered by the relevant guidelines, the amendment provides as follows:
(A) The new offense in 18 U.S.C. § 554, pertaining to smuggling of goods from the United States, is referenced to §§2B1.5 (Theft of, Damage to, or Destruction of, Cultural Heritage Resources; Unlawful Sale, Purchase, Exchange, Transportation, or Receipt of Cultural Heritage Resources), 2M5.2 (Exportation of Arms, Munitions, or Military Equipment or Services Without Required Validated Export License), and 2Q2.1 (Offenses Involving Fish, Wildlife, and Plants).
(B) The new offense in 18 U.S.C. § 2282A, pertaining to mining of United States navigable waters, is referenced to §§2A1.1 (First Degree Murder), 2A1.2 (Second Degree Murder), 2B1.1 (Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving Stolen Property; Property Damage or Destruction; Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States), 2K1.4 (Arson; Property Damage by Use of Explosives), and 2X1.1 (Attempt, Solicitation, or Conspiracy (Not Covered by a Specific Offense Guideline)). The amendment also adds vessel, maritime facility, and a vessel’s cargo to §2K1.4(a)(1) and (a)(2) to cover conduct described in 18 U.S.C. § 2282A. The definitions provided for "vessel," "maritime facility," and "aids to maritime navigation" come from title 33 of the Code of Federal Regulations pertaining to the United States Coast Guard, specifically Navigation and Navigable Waters.
Section 2282B, pertaining to violence against maritime navigational aids, is referenced to §§2B1.1, 2K1.4, and 2X1.1. Section 2K1.4(a) is amended to provide a new base offense level of 16 if the offense involved the destruction of or tampering with aids to maritime navigation.
(C) The new offense in 18 U.S.C. § 2283 pertaining to transporting biological and chemical weapons is referenced to §§2K1.3 (Unlawful Receipt, Possession, or Transportation of Explosive Materials; Prohibited Transactions Involving Explosive Materials), 2M5.3 (Providing Material Support or Resources to Designated Foreign Terrorism Organizations or For a Terrorist Purpose), and 2M6.1 (Unlawful Production, Development, Acquisition, Stockpiling, Alteration, Use, Transfer, or Possession of Nuclear Material, Weapons, or Facilities, Biological Agents, Toxins, or Delivery Systems, Chemical Weapons, or Other Weapons of Mass Destruction; Attempt or Conspiracy). The new offense in 18 U.S.C. § 2284 pertaining to transporting terrorists is referenced to §§2M5.3 (Providing Material Support or Resources to Designated Foreign Terrorist Organizations or For a Terrorist Purpose), 2X2.1 (Aiding and Abetting), and 2X3.1 (Accessory After the Fact).
(D) Section 2341 of title 18, United States Code, which provides definitions for offenses involving contraband cigarettes and smokeless tobacco, was amended to reduce the number of contraband cigarettes necessary to violate the substantive offenses set forth in 18 U.S.C. §§ 2342 and 2344 from 60,000 to 10,000. The amendment makes conforming changes to the background commentary of §2E4.1 (Unlawful Conduct Relating to Contraband Cigarettes) and expands the headings of Chapter Two, Part E, Subpart 4 and §2E4.1 to include smokeless tobacco.
(E) The Patriot Reauthorization Act increased the statutory maximum term of imprisonment for offenses covered by the International Emergency Economic Powers Act (50 U.S.C. § 1705) from 10 years to 20 years’ imprisonment. The amendment references 50 U.S.C. § 1705 to §2M5.3 and modifies the heading of the guideline to include "specially designated global terrorist".
Fourth, the amendment sets forth the statutory references in Appendix A (Statutory Index) for the new offenses. Appendix A is amended to provide a parenthetical description for the two statutory references to 18 U.S.C. § 554.
Fifth, the amendment implements a directive in section 1191(c) of the Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. 109–162. The Act directed the Commission to amend the guidelines "to assure that the sentence imposed on a defendant who is convicted of a Federal offense while wearing or displaying insignia and uniform received in violation of section 716 of title 18, United States Code, reflects the gravity of this aggravating factor." Section 716 of title 18, United States Code, is a Class B misdemeanor which is not covered by the guidelines, see §1B1.9 (Class B or C Misdemeanors and Infractions); however, the amendment creates a new policy statement at §5K2.24 (Commission of Offense While Wearing or Displaying Unauthorized or Counterfeit Insignia or Uniform) providing that an upward departure may be warranted if, during the commission of the offense, the defendant wore or displayed an official, or counterfeit official, insignia or uniform received in violation of 18 U.S.C. § 716.
Effective Date: The effective date of this amendment is November 1, 2007.