AMENDMENT 777
The Commentary to §2B1.1 captioned “Application Notes” is amended in Note 15 (as renumbered by Amendment 772) by striking “1a(5)” both places it appears and inserting “1a(11)”; by striking “1a(6)” both places it appears and inserting “1a(12)”; by striking “1a(20)” both places it appears and inserting “1a(28)”; and by striking “1a(23)” both places it appears and inserting “1a(31)”.
Section 2B2.3(b) is amended by striking paragraph (1) as follows:
“(1) If the trespass occurred (A) at a secure government facility; (B) at a nuclear energy facility; (C) on a vessel or aircraft of the United States; (D) in a secure area of an airport or a seaport; (E) at a residence; (F) at Arlington National Cemetery or a cemetery under the control of the National Cemetery Administration; or (G) on a computer system used (i) to maintain or operate a critical infrastructure; or (ii) by or for a government entity in furtherance of the administration of justice, national defense, or national security, increase by 2 levels.”;
and inserting the following:
“(1) (Apply the greater) If—
(A) the trespass occurred (i) at a secure government facility; (ii) at a nuclear energy facility; (iii) on a vessel or aircraft of the United States; (iv) in a secure area of an airport or a seaport; (v) at a residence; (vi) at Arlington National Cemetery or a cemetery under the control of the National Cemetery Administration; (vii) at any restricted building or grounds; or (viii) on a computer system used (I) to maintain or operate a critical infrastructure; or (II) by or for a government entity in furtherance of the administration of justice, national defense, or national security, increase by 2 levels; or
(B) the trespass occurred at the White House or its grounds, or the Vice President’s official residence or its grounds, increase by 4 levels.”.
The Commentary to §2B2.3 captioned “Application Notes” is amended in Note 1 by inserting after the paragraph that begins “ ‘Protected computer’ means” the following:
“ ‘Restricted building or grounds’ has the meaning given that term in 18 U.S.C. § 1752.”; and
in Note 2 by inserting “Application of Subsection (b)(3).—” at the beginning.
The Notes to the Drug Quantity Table in §2D1.1(c) are amended in each of Notes (H) and (I) by striking “1308.11(d)(30)” and inserting “1308.11(d)(31)”.
The Commentary to §2J1.2 captioned “Application Notes” is amended in Note 2(A) by striking “Chapter Three, Part C” in the heading and inserting “§3C1.1”; and by striking “Chapter Three, Part C (Obstruction and Related Adjustments)” and inserting “§3C1.1 (Obstructing or Impeding the Administration of Justice)”.
The Commentary to §2J1.3 captioned “Application Notes” is amended in Note 2 by striking “Chapter Three, Part C (Obstruction and Related Adjustments)” and inserting “§3C1.1 (Obstructing or Impeding the Administration of Justice)”; and in Note 3 by striking “Chapter Three, Part C (Obstruction and Related Adjustments)” and inserting “§3C1.1”.
The Commentary to §2J1.6 captioned “Application Notes” is amended in Note 2 by striking “Chapter Three, Part C (Obstruction and Related Adjustments)” and inserting “§3C1.1 (Obstructing or Impeding the Administration of Justice)”.
The Commentary to §2J1.9 captioned “Application Notes” is amended in Note 1 by striking “Chapter Three, Part C (Obstruction and Related Adjustments)” and inserting “§3C1.1 (Obstructing or Impeding the Administration of Justice)”; and in Note 2 by striking “Chapter Three, Part C (Obstruction and Related Adjustments)” and inserting “§3C1.1”.
The Commentary to §4A1.1 captioned “Application Notes” is amended in each of Notes 2 and 3 by striking “court martial” and inserting “court-martial”.
Section 4A1.2(g) is amended by striking “court martial” both places it appears and inserting “court-martial”.
Appendix A (Statutory Index) is amended by inserting after the line referenced to 18 U.S.C. § 38 the following:
“18 U.S.C. § 39A 2A5.2”;
in the line referenced to 18 U.S.C. § 554 by inserting “2M5.1,” after “2B1.5,”;
by inserting after the line referenced to 18 U.S.C. § 1513 the following:
“18 U.S.C. § 1514(c) 2J1.2”;
by inserting after the line referenced to 18 U.S.C. § 1751(e) the following:
“18 U.S.C. § 1752 2A2.4, 2B2.3”;
and by inserting after the line referenced to 19 U.S.C. § 1586(e) the following:
“19 U.S.C. § 1590(d)(1) 2T3.1
19 U.S.C. § 1590(d)(2) 2D1.1”.
Reason for Amendment: This amendment responds to recently enacted legislation and miscellaneous and technical guideline issues.
Aiming a Laser Pointer at an Aircraft
First, the amendment responds to Section 311 of the FAA Modernization and Reform Act of 2012, Pub. L. 112–95 (enacted February 14, 2012), which established a new criminal offense at 18 U.S.C. § 39A (Aiming a laser pointer at an aircraft). The offense applies to whoever knowingly aims the beam of a laser pointer at an aircraft in the special aircraft jurisdiction of the United States or at the flight path of such an aircraft. The statutory maximum term of imprisonment is five years.
The amendment amends Appendix A (Statutory Index) to reference section 39A offenses to §2A5.2 (Interference with Flight Crew Member or Flight Attendant; Interference with Dispatch, Navigation, Operation, or Maintenance of Mass Transportation Vehicle). Section 2A5.2 is the most analogous guideline because the offense involves interference with an aircraft in flight.
Restraining the Harassment of a Victim or Witness
Second, the amendment responds to section 3(a) of the Child Protection Act of 2012, Pub. L. 112–206 (enacted December 7, 2012), which established a new offense at 18 U.S.C. § 1514(c) that makes it a criminal offense to knowingly and intentionally violate or attempt to violate an order issued under section 1514 (Civil action to restrain harassment of a victim or witness). The new offense has a statutory maximum term of imprisonment of five years.
The amendment amends Appendix A (Statutory Index) to reference section 1514(c) offenses to §2J1.2 (Obstruction of Justice). Section 2J1.2 is the most analogous guideline because the offense involves interference with judicial proceedings.
Restricted Buildings and Grounds
Third, the amendment responds to the Federal Restricted Buildings and Grounds Improvement Act of 2011, Pub. L. 112–98 (enacted March 8, 2012), which amended the criminal offense at 18 U.S.C. § 1752 (Restricted building or grounds). As so amended, the statute defines “restricted buildings or grounds” to mean any restricted area (A) of the White House or its grounds, or the Vice President’s official residence or its grounds; (B) of uilding or grounds where the President or other person protected by the United States Secret Service is or will be temporarily visiting; or (C) of a building or grounds restricted in conjunction with an event designated as a special event of national significance. The statute makes it a crime to enter or remain; to impede or disrupt the orderly conduct of business or official functions; to obstruct or impede ingress or egress; or to engage in any physical violence against any person or property. The Act did not change the statutory maximum term of imprisonment, which is ten years if the person used or carried a deadly or dangerous weapon or firearm or if the offense results in significant bodily injury, and one year in any other case.
The amendment amends Appendix A (Statutory Index) to reference section 1752 offenses to §2A2.4 (Obstructing or Impeding Officers) and §2B2.3 (Trespass). These guidelines are most analogous because the elements of offenses under section 1752 involve either trespass at certain locations (i.e., locations permanently or temporarily protected by the Secret Service) or interference with official business at such locations, or both.
The amendment also amends §2B2.3(b)(1) to ensure that a trespass under section 1752 provides a 4-level enhancement if the trespass occurred at the White House or the Vice President’s official residence, or a 2-level enhancement if the trespass occurred at any other location permanently or temporarily protected by the Secret Service. Section 2B2.3(b)(1) provides a 2-level enhancement if the trespass occurred at locations that involve a significant federal interest, such as nuclear facilities, airports, and seaports. A trespass at a location protected by the Secret Service is no less serious than a trespass at other locations that involve a significant federal interest and warrants an equivalent enhancement of 2 levels. Section 2B2.3(b)(1) also provides a 2-level enhancement if the trespass occurred at a residence. A trespass at the residence of the President or the Vice President is more serious and poses a greater risk of harm than a trespass at an ordinary residence and warrants an enhancement of 4 levels.
Aviation Smuggling
Fourth, the amendment responds to the Ultralight Aircraft Smuggling Prevention Act of 2012, Pub. L. 112–93 (enacted February 10, 2012), which amended the criminal offense at 19 U.S.C. § 1590 (Aviation smuggling) to clarify that the term “aircraft” includes ultralight aircraft and to cover attempts and conspiracies. Section 1590 makes it unlawful for the pilot of an aircraft to transport merchandise, or for any individual on board any aircraft to possess merchandise, knowing that the merchandise will be introduced into the United States contrary to law. It is also unlawful for a person to transfer merchandise between an aircraft and a vessel on the high seas or in the customs waters of the United States unlawfully. The Act did not change the statutory maximum terms of imprisonment, which are 20 years if any of the merchandise involved was a controlled substance, see § 1590(d)(2), and five years otherwise, see § 1590(d)(1).
The amendment amends Appendix A (Statutory Index) to reference offenses under section 1590(d)(1) to §2T3.1 (Evading Import Duties or Restrictions (Smuggling); Receiving or Trafficking in Smuggled Property). In such cases, §2T3.1 is the most analogous guideline because the offense involves smuggling. The amendment also amends Appendix A (Statutory Index) to reference offenses under section 1590(d)(2) to §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy). In such cases, §2D1.1 is the most analogous guideline because controlled substances are involved in these offenses.
Interaction Between Offense Guidelines in Chapter Two, Part J, and Certain Adjustments in Chapter Three, Part C
Fifth, the amendment responds to an application issue that may arise in cases in which the defendant is sentenced under an offense guideline in Chapter Two, Part J (Offenses Involving the Administration of Justice) and the defendant may also be subject to an adjustment under Chapter Three, Part C (Obstruction and Related Adjustments). Specifically, there are application notes in four Chapter Two, Part J guidelines that, it has been argued, preclude the court from applying adjustments in Chapter Three, Part C. See, e.g., United States v. Duong, 665 F.3d 364 (1st Cir. 2012) (observing that, “according to the literal terms” of the application notes, an adjustment under Chapter Three, Part C “ ‘does not apply,’ ” but “reject[ing] that premise”).
The amendment amends the relevant application notes in Chapter Two, Part J (see §§2J1.2, comment. (n.2(A)); 2J1.3, comment. (n.2); 2J1.6, comment. (n.2); 2J1.9, comment. (n.1)) to clarify the Commission’s intent that they restrict the court from applying §3C1.1 (Obstructing or Impeding the Administration of Justice) but do not restrict the court from applying §§3C1.2, 3C1.3, and 3C1.4. These changes resolve the application issue consistent with Duong and promote clarity and consistency in the application of these adjustments.
Export Offenses Under 18 U.S.C. § 554
Sixth, the amendment broadens the range of guidelines to which export offenses under 18 U.S.C. § 554 (Smuggling goods from the United States) are referenced. Section 554 makes it unlawful to export or send from the United States (or attempt to do so) any merchandise, article, or object contrary to any law or regulation of the United States. It also makes it unlawful to receive, conceal, buy, sell, or in any manner facilitate the transportation, concealment, or sale of such merchandise, article, or object, prior to exportation, knowing the same to be intended for exportation contrary to any law or regulation of the United States. Offenses under section 554 have a statutory maximum term of imprisonment of ten years, and they are referenced in Appendix A (Statutory Index) to three guidelines: §§2B1.5 (Theft of, Damage to, or Destruction of, Cultural Heritage Resources or Paleontological Resources; Unlawful Sale, Purchase, Exchange, Transportation, or Receipt of Cultural Heritage Resources or Paleontological 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).
The amendment amends Appendix A (Statutory Index) to add §2M5.1 (Evasion of Export Controls; Financial Transactions with Countries Supporting International Terrorism) to the list of guidelines to which offenses under section 554 are referenced. Not all offenses under section 554 involve munitions, cultural resources, or wildlife, so a reference to an additional guideline is warranted. For example, a section 554 offense may be based on the export of ordinary commercial goods in violation of economic sanctions or on the export of “dual-use” goods (i.e., goods that have both commercial and military applications). For such cases, the additional reference to §2M5.1 promotes clarity and consistency in guideline application, and the penalty structure of §2M5.1 provides appropriate distinctions between offenses that violate national security controls and offenses that do not.
Technical and Stylistic Changes
Finally, the amendment makes certain technical and stylistic changes to the Guidelines Manual. First, it amends the Commentary to §2B1.1 (Theft, Property Destruction, and Fraud) to provide updated references to the definitions contained in 7 U.S.C. § 1a, which were renumbered by Public Law 111–203 (enacted July 21, 2010). Second, it amends the Notes to the Drug Quantity Table in §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) to provide updated references to the definition of tetrahydrocannabinols contained in 21 C.F.R. § 1308.11(d), which were renumbered by 75 Fed. Reg. 79296 (December 20, 2010). Third, it makes several stylistic revisions in the Guidelines Manual to change “court martial” to “court-martial.” The changes are not substantive.
Effective Date: The effective date of this amendment is November 1, 2013.