§2B3.1

(a) Base Offense Level: 20

(b) Specific Offense Characteristics

(1) If the property of a financial institution or post office was taken, or if the taking of such property was an object of the offense, increase by 2 levels.

(2) (A) If a firearm was discharged, increase by 7 levels; (B) if a firearm was otherwise used, increase by 6 levels; (C) if a firearm was brandished or possessed, increase by 5 levels; (D) if a dangerous weapon was otherwise used, increase by 4 levels; (E) if a dangerous weapon was brandished or possessed, increase by 3 levels; or (F) if a threat of death was made, increase by 2 levels.

(3) If any victim sustained bodily injury, increase the offense level according to the seriousness of the injury:

Degree of Bodily Injury	Increase in Level
(A) Bodily Injury	add 2
(B) Serious Bodily Injury	add 4
(C) Permanent or Life-Threatening Bodily Injury	add 6
(D) If the degree of injury is between that specified in subparagraphs (A) and (B),	add 3 levels; or
(E) If the degree of injury is between that specified in subparagraphs (B) and (C),	add 5 levels.

Provided, however, that the cumulative adjustments from application of paragraphs (2) and (3) shall not exceed 11 levels.

(4) (A) If any person was abducted to facilitate commission of the offense or to facilitate escape, increase by 4 levels; or (B) if any person was physically restrained to facilitate commission of the offense or to facilitate escape, increase by 2 levels.

(5) If the offense involved carjacking, increase by 2 levels.

(6) If a firearm, destructive device, or controlled substance was taken, or if the taking of such item was an object of the offense, increase by 1 level.

(7) If the loss exceeded $20,000, increase the offense level as follows:

Loss (Apply the Greatest)	Increase in Level
(A) $20,000 or less	no increase
(B) More than $20,000	add 1
(C) More than $95,000	add 2
(D) More than $500,000	add 3
(E) More than $1,500,000	add 4
(F) More than $3,000,000	add 5
(G) More than $5,000,000	add 6
(H) More than $9,500,000	add 7.

(c) Cross Reference

(1) If a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States, apply §2A1.1 (First Degree Murder).

Commentary

Statutory Provisions: 18 U.S.C. §§ 1951, 2113, 2114, 2118(a), 2119. For additional statutory provision(s), see Appendix A (Statutory Index).

Application Notes:

1. Definitions.—“Firearm,” “destructive device,” “dangerous weapon,” “otherwise used,” “brandished,” “bodily injury,” “serious bodily injury,” “permanent or life-threatening bodily injury,” “abducted,” and “physically restrained” are defined in the Commentary to §1B1.1 (Application Instructions).

“Carjacking” means the taking or attempted taking of a motor vehicle from the person or presence of another by force and violence or by intimidation.

2. Dangerous Weapon.—Consistent with Application Note 1(E)(ii) of §1B1.1 (Application Instructions), an object shall be considered to be a dangerous weapon for purposes of subsection (b)(2)(E) if (A) the object closely resembles an instrument capable of inflicting death or serious bodily injury; or (B) the defendant used the object in a manner that created the impression that the object was an instrument capable of inflicting death or serious bodily injury (e.g., a defendant wrapped a hand in a towel during a bank robbery to create the appearance of a gun).

3. Definition of “Loss”.—“Loss” means the value of the property taken, damaged, or destroyed.

4. Cumulative Application of Subsections (b)(2) and (b)(3).—The combined adjustments for weapon involvement and injury are limited to a maximum enhancement of 11 levels.

5. Upward Departure Provision.—If the defendant intended to murder the victim, an upward departure may be warranted; see §2A2.1 (Assault with Intent to Commit Murder; Attempted Murder).

6. “A Threat of Death”.—“A threat of death,” as used in subsection (b)(2)(F), may be in the form of an oral or written statement, act, gesture, or combination thereof. Accordingly, the defendant does not have to state expressly his intent to kill the victim in order for the enhancement to apply. For example, an oral or written demand using words such as “Give me the money or I will kill you”, “Give me the money or I will pull the pin on the grenade I have in my pocket”, “Give me the money or I will shoot you”, “Give me your money or else (where the defendant draws his hand across his throat in a slashing motion)”, or “Give me the money or you are dead” would constitute a threat of death. The court should consider that the intent of this provision is to provide an increased offense level for cases in which the offender(s) engaged in conduct that would instill in a reasonable person, who is a victim of the offense, a fear of death.

Background: Possession or use of a weapon, physical injury, and unlawful restraint sometimes occur during a robbery. The guideline provides for a range of enhancements where these factors are present.

Although in pre-guidelines practice the amount of money taken in robbery cases affected sentence length, its importance was small compared to that of the other harm involved. Moreover, because of the relatively high base offense level for robbery, an increase of 1 or 2 levels brings about a considerable increase in sentence length in absolute terms. Accordingly, the gradations for property loss increase more slowly than for simple property offenses.

The guideline provides an enhancement for robberies where a victim was forced to accompany the defendant to another location, or was physically restrained by being tied, bound, or locked up.