[Federal Register Volume 61, Number 1 (Tuesday, January 2, 1996)]
[Notices]
[Pages 79-83]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31570]



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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of proposed amendments to sentencing guidelines, policy 
statements, and commentary. Request for public comment.

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SUMMARY: The Commission is considering promulgating certain amendments 
to the sentencing guidelines, policy statements, and commentary. This 
notice sets forth the proposed amendments and, for each proposed 
amendment, a synopsis of the issues addressed by that amendment. The 
Commission seeks comment on the proposed amendments, alternative 
proposed amendments, and any other aspect of the sentencing guidelines, 
policy statements, and commentary. The Commission may submit amendments 
to the Congress not later than May 1, 1996.

DATES: Written public comment should be received by the Commission not 
later than March 6, 1996, in order to be considered by the Commission 
in the promulgation of amendments and in the possible submission of 
those amendments to the Congress by May 1, 1996.

ADDRESSES: Public comment should be sent to: United States Sentencing 
Commission, One Columbus Circle, N.E., Suite 2-500, Washington, D.C. 
20002-8002, Attention: Public Information.

FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Information 
Specialist, Telephone: (202) 273-4590.

SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is 
an independent agency in the judicial branch of the United States 
Government. The Commission promulgates sentencing guidelines and policy 
statements for federal sentencing courts pursuant to 28 U.S.C. 994(a). 
The Commission also periodically reviews and revises previously 
promulgated guidelines pursuant to 28 U.S.C. 994(o) and submits 
guideline amendments to the Congress not later than the first day of 
May each year pursuant to 28 U.S.C. 994(p).
    Ordinarily, the rule-making requirements of the Administrative 
Procedure Act are inapplicable to judicial agencies; however, 28 U.S.C. 
994(x) makes the rule-making provisions of 5 U.S.C. 553 applicable to 
the promulgation of sentencing guidelines by the Commission.
    The proposed amendments are presented in this notice in one of two 
formats. First, some of the amendments are proposed as specific 
revisions of a guideline, policy statement, or commentary. Second, the 
Commission has highlighted certain issues for comment and invites 
suggestions for specific amendment language and, in the case of 
penalties for cocaine offenses, related legislative proposals.
    Section 1B1.10 of the United States Sentencing Commission 
Guidelines Manual sets forth the Commission's policy statement 
regarding retroactivity of amended guideline ranges. The Commission 
requests comment as to whether any of the proposed amendments should be 
made retroactive under this policy statement.
    As set forth more fully in its notice dated September 22, 1995, 
(see 60 F.R. 49316-17), the Commission currently is engaged in a 
comprehensive guideline assessment and simplification effort. This 
project is expected to be a two-year initiative that may produce 
amendments in the 1996-97 amendment cycle for submission to Congress 
not later than May 1, 1997. During this initial year of the project, 
the Commission generally plans to promulgate no guideline amendments, 
except as may be necessary to implement legislation enacted by 
Congress. The Commission believes that a one-year hiatus in the 
heretofore annual amendment process is appropriate at this juncture to 
allow a guideline settling period and to permit more deliberate 
consideration of broader guideline concerns.
    The matters published for comment in this notice pertaining to 
sentencing policy for cocaine and money laundering offenses are 
responsive to Pub. L. 104-38 (Oct. 30, 1995). The matters relating to 
proposed guideline amendments for food and drug offenses are a product 
of a staff working group that has considered these issues during the 
past two years. The Commission voted at its September 5, 1995, meeting, 
prior to its subsequent decision declaring a one-year hiatus on 
Commission amendment initiatives, to 

[[Page 80]]
publish these amendments for comment.
    Publication of these matters for comment reflects only the 
Commission's determination that public comment on the amendment or 
issue would be welcome and helpful at this time. The Commission may or 
may not act upon these proposals in the current amendment cycle.

    Authority. 28 U.S.C. 994 (a), (o), (p), (x).
Richard P. Conaboy,
Chairman.

Cocaine Offenses

Chapter Two, Part D (Offenses Involving Drugs)

    1. Issue for Comment: The Violent Crime Control and Law Enforcement 
Act of 1994 directed the Commission to issue a report and 
recommendations on the issue of cocaine and federal sentencing policy. 
On February 28, 1995, the Commission issued its report to Congress in 
which it recommended that changes be made to the current cocaine 
sentencing scheme, including changes to the 100-to-1 quantity ratio 
between crack cocaine and powder cocaine used in calculating sentences 
in the current guidelines. The report indicated that the Commission 
would investigate the feasibility of creating new guideline 
enhancements and amending current enhancements to more fully and fairly 
address the harms associated with cocaine offenses generally and the 
harms associated with crack cocaine offenses, specifically. Based on 
these new enhancements, the Commission would make appropriate 
adjustments in the guideline quantity ratio.
    On May 1, 1995, the Commission sent to Congress proposed changes to 
the sentencing guidelines implementing the recommendations made in the 
report. See 60 Fed. Reg. 25074, 25075-77 (May 10, 1995). The proposed 
guidelines included provisions that would have enhanced penalties for 
drug offenders, including crack cocaine offenders, who used weapons 
during their drug crimes, involved minors in the drug crimes, or 
committed their crimes near a school, or for other specified reasons 
that made those crimes more dangerous to society. In addition, the 
proposed amendments adjusted the guideline quantity ratio so that the 
base sentences, from which the enhancements would be added, would be 
the same for both powder cocaine and crack cocaine offenses.
    Pursuant to 28 U.S.C. 994(p), Congress subsequently enacted 
legislation disapproving the Commission's proposed amendments. See Pub. 
L. 104-38, 109 Stat. 334 (Oct. 30, 1995). In the legislation, Congress 
directed the Commission to:
    ``(1) *  *  * submit to Congress recommendations (and an 
explanation therefor), regarding changes to the statutes and sentencing 
guidelines governing sentences for unlawful manufacturing, importing, 
exporting, trafficking of cocaine, and like offenses, including 
unlawful possession with intent to commit any of the foregoing 
offenses, and attempt and conspiracy to commit any of the foregoing 
offenses. The recommendations shall reflect the following 
considerations--
    (A) the sentence imposed for trafficking in a quantity of crack 
cocaine should generally exceed the sentence imposed for trafficking in 
a like quantity of powder cocaine;
    (B) high-level wholesale cocaine traffickers, organizers, and 
leaders, of criminal activities should generally receive longer 
sentences than low-level retail cocaine traffickers and those who 
played a minor or minimal role in such activity;
    (C) if the Government establishes that a defendant who traffics in 
powder cocaine has knowledge that such cocaine will be converted into 
crack cocaine prior to its distribution to individual users, the 
defendant should be treated at sentencing as though the defendant had 
trafficked in crack cocaine; and
    (D) an enhanced sentence should generally be imposed on a defendant 
who, in the course of an offense described in this subsection--
    (i) murders or causes serious bodily injury to an individual;
    (ii) uses a dangerous weapon;
    (iii) uses or possesses a firearm;
    (iv) involves a juvenile or a woman who the defendant knows or 
should know to be pregnant;
    (v) engages in a continuing criminal enterprise or commits other 
criminal offenses in order to facilitate his drug trafficking 
activities;
    (vi) knows, or should know, that he is involving an unusually 
vulnerable person;
    (vii) restrains a victim;
    (viii) traffics in cocaine within 500 feet of a school;
    (ix) obstructs justice;
    (x) has a significant prior criminal record; or
    (xi) is an organizer or leader of drug trafficking activities 
involving five or more persons.
    (2) Ratio.--The recommendations described in the preceding 
subsection shall propose revision of the drug quantity ratio of crack 
cocaine to powder cocaine under the relevant statutes and guidelines in 
a manner consistent with the ratios set for other drugs and consistent 
with the objectives set forth in section 3553(a) of title 28 United 
States Code.''
    The Commission invites comment regarding implementation of this 
congressional directive, including comment on appropriate enhancements 
for violence and other harms associated with crack and powder cocaine, 
as well as the quantity ratio that should be substituted for the 
current 100-to-1 ratio. (Note that the reference in the congressional 
directive to section 3553(a) of title 28, United States Code, should be 
a reference to section 3553(a) of title 18, United States Code.)
    A number of amendment proposals and issues for comment relating to 
cocaine sentencing policy are set forth in the Federal Registers of 
January 9 and March 15, 1995. See 60 Fed. Reg. 2430, 2445-51; 14054-55.

Money Laundering Offenses

Chapter Two, Part S (Money Laundering and Monetary Transaction 
Reporting)

    2. Synopsis of Proposed Amendment: In 1992, the Commission formed a 
staff working group to assess the operation of the guidelines for money 
laundering and monetary transaction reporting offenses. The group 
produced a report and recommended amendments. The Commission 
subsequently adopted a revised guideline covering monetary transaction 
reporting offenses. See Guidelines Manual, Appendix C, Amendment 490 
(effective November 1, 1993). In 1995, after considering an updated 
analysis prepared by the working group, the Commission adopted a 
revised, consolidated guideline for money laundering offenses. See 
amendment 18, 60 Fed. Reg. 25074, 25085-86 (May 10, 1995). This 
amendment subsequently was disapproved by Congress. See Pub. L. 104-38, 
109 Stat. 334 (Oct. 30, 1995). Congressional debate related to the 
disapproval legislation appears to suggest, however, that the 
Commission is expected to modify and resubmit appropriate amendments to 
the money laundering guidelines, taking into account concerns that 
serious money laundering offenses continue to receive appropriately 
severe punishment. See generally 14 Cong. Rec. H10,255-84 (daily ed. 
Oct. 18, 1995).
    Accordingly, to frame the discussion for continued efforts to 
develop appropriate revisions to the money laundering guidelines, the 
Commission is republishing for comment the amendment submitted to 
Congress in 1995 along with a Department of Justice alternative. The 
Commission invites 

[[Page 81]]
comment on these alternative proposals or on some variation of them 
that appropriately addresses the goals of: (1) Assuring that offense 
levels comport with the seriousness of the defendant's offense conduct; 
and (2) avoiding unwarranted sentencing disparities as a result of 
charging practices.

(A) Proposed Amendment

    Sections 2S1.1 and 2S1.2 are deleted and the following inserted in 
lieu thereof:
    ``Sec. 2S1.1. Laundering of Monetary Instruments; Engaging in 
Monetary Transactions in Property Derived from Unlawful Activity
(a) Base Offense Level (Apply the Greatest)
    (1) The offense level for the underlying offense from which the 
funds were derived, if the defendant committed the underlying offense 
(or otherwise would be accountable for the commission of the underlying 
offense under Sec. 1B1.3 (Relevant Conduct)) and the offense level for 
that offense can be determined; or
    (2) 12 plus the number of offense levels from the table in 
Sec. 2F1.1 (Fraud and Deceit) corresponding to the value of the funds, 
if the defendant knew or believed that the funds were the proceeds of, 
or were to be used to promote, an offense involving the manufacture, 
importation, or distribution of controlled substances or listed 
chemicals; a crime of violence; or an offense involving firearms or 
explosives, national security, or international terrorism; or
    (3) 8 plus the number of offense levels from the table in 
Sec. 2F1.1 (Fraud and Deceit) corresponding to the value of the funds.
(b) Specific Offense Characteristics
    (1) If the defendant knew or believed that (A) the financial or 
monetary transactions, transfers, transportation, or transmissions were 
designed in whole or in part to conceal or disguise the proceeds of 
criminal conduct, or (B) the funds were to be used to promote further 
criminal conduct, increase by 2 levels.
    (2) If subsection (b)(1)(A) is applicable and the offense (A) 
involved placement of funds into, or movement of funds through or from, 
a company or financial institution outside the United States, or (B) 
otherwise involved a sophisticated form of money laundering, increase 
by 2 levels.

Commentary

    Statutory Provisions: 18 U.S.C. 1956, 1957.

Application Notes

    1. ``Value of the funds'' means the value of the funds or property 
involved in the financial or monetary transactions, transportation, 
transfers, or transmissions that the defendant knew or believed (A) 
were criminally derived funds or property, or (B) were to be used to 
promote criminal conduct.
    When a financial or monetary transaction, transfer, transportation, 
or transmission involves legitimately derived funds that have been 
commingled with criminally derived funds, the value of the funds is the 
amount of the criminally derived funds, not the total amount of the 
commingled funds. For example, if the defendant deposited $50,000 
derived from a bribe together with $25,000 of legitimately derived 
funds, the value of the funds is $50,000, not $75,000.
    Criminally derived funds are any funds that are derived from a 
criminal offense; e.g., in a drug trafficking offense, the total 
proceeds of the offense are criminally derived funds. In a case 
involving fraud, however, the loss attributable to the offense 
occasionally may be considerably less than the value of the criminally 
derived funds (e.g., the defendant fraudulently sells stock for 
$200,000 that is worth $120,000 and deposits the $200,000 in a bank; 
the value of the criminally derived funds is $200,000, but the loss is 
$80,000). If the defendant is able to establish that the loss, as 
defined in Sec. 2F1.1 (Fraud and Deceit), was less than the value of 
the funds (or property) involved in the financial or monetary 
transactions, transfers, transportation, or transmissions, the loss 
from the offense shall be used as the 'value of the funds.'
    2. If the defendant is to be sentenced both on a count for an 
offense from which the funds were derived and on a count under this 
guideline, the counts will be grouped together under subsection (c) of 
Sec. 3D1.2 (Groups of Closely-Related Counts).
    3. Subsection (b)(1)(A) provides an increase for those cases that 
involve efforts to make criminally derived funds appear to have a 
legitimate source. This subsection will apply, for example, when the 
defendant conducted a transaction through a straw party or a front 
company, concealed a money-laundering transaction in a legitimate 
business, or used an alias or otherwise provided false information to 
disguise the true source or ownership of the funds.
    4. In order for subsection (b)(1)(B) to apply, the defendant must 
have known or believed that the funds would be used to promote further 
criminal conduct, i.e, criminal conduct beyond the underlying criminal 
conduct from which the funds were derived.
    5. Subsection (b)(2) provides an additional increase for those 
money laundering cases that are more difficult to detect because 
sophisticated steps were taken to conceal the origin of the money. 
Subsection (b)(2)(B) will apply, for example, if the offense involved 
the 'layering' of transactions, i.e., the creation of two or more 
levels of transaction that were intended to appear legitimate.

Background

    The statutes covered by this guideline were enacted as part of the 
Anti-Drug Abuse Act of 1986. These statutes cover a wide range of 
conduct. For example, they apply to large-scale operations that engage 
in international laundering of illegal drug proceeds. They also apply 
to a defendant who deposits $11,000 of fraudulently obtained funds in a 
bank. In order to achieve proportionality in sentencing, this guideline 
generally starts from a base offense level equivalent to that which 
would apply to the specified unlawful activity from which the funds 
were derived. The specific offense characteristics provide enhancements 
if the offense was designed to conceal or disguise the proceeds of 
criminal conduct and if the offense involved sophisticated money 
laundering.''.
    Section 3D1.2(d) is amended in the second paragraph by deleting 
``2S1.2,''.
    Section 8C2.1(a) is amended by deleting ``2S1.2,''.
    The Commentary to Sec. 8C2.4 captioned ``Application Notes'' is 
amended in Note 5 by deleting ``Sec. 2S1.1 (Laundering of Monetary 
Instruments); Sec. 2S1.2 (Engaging in Monetary Transactions in Property 
Derived from Specified Unlawful Activity); and Sec. 2S1.3 (Structuring 
Transactions to Evade Reporting Requirements; Failure to Report Cash or 
Monetary Transactions; Failure to File Currency and Monetary Instrument 
Report; Knowingly Filing False Reports)''; and by inserting ``or'' 
immediately before ``Sec. 2R1.1''.
    Appendix A (Statutory Index) is amended in the line reference to 18 
U.S.C. Sec. 1957 by deleting ``2S1.2'' and inserting in lieu thereof 
``2S1.1''.

(B) Proposed Amendment--Department of Justice Alternative

    Sections 2S1.1 and 2S1.2 are deleted and the following inserted in 
lieu thereof:
    ``Sec. 2S1.1. Laundering of Monetary Instruments; Engaging in 
Monetary Transactions in Property Derived from Unlawful Activity 

[[Page 82]]

(a) Base Offense Level (Apply the Greatest)
    (1) the offense level for the underlying offense from which the 
funds were derived plus 2 levels, if the defendant committed the 
underlying offense and the offense level for that offense can be 
determined; or
    (2) 16 plus the number of offense levels from the table in 
Sec. 2F1.1 (Fraud and Deceit) corresponding to the value of the funds, 
if the defendant knew or believed that the funds were the proceeds of 
an unlawful activity involving a matter of national security or 
munitions control, a crime of violence, a firearm, an explosive, the 
sexual exploitation of children, or the manufacture, importation, or 
distribution of a controlled substance, or were intended to promote 
those offenses; or
    (3) 12 plus the number of offense levels from the table in 
Sec. 2F1.1 (Fraud and Deceit) corresponding to the value of the funds.
(b) Specific Offense Characteristics
    (1) Apply the greater:
    (A) If the defendant knew or believed that (i) the transactions 
were designed in whole or in part to conceal or disguise the proceeds 
of criminal conduct, or (ii) the funds were to be used to promote 
further criminal activity, increase by 2 levels; or
    (B) If the defendant (i) intended to engage in conduct constituting 
a violation of section 7201 or 7206 of the Internal Revenue Code of 
1986, or (ii) knew or believed that the transactions were designed in 
whole or in part to avoid a transaction reporting requirement under 
State or Federal law, increase by 1 level.
    (2) If subsection (b)(1)(A) is applicable and the offense involved 
(A) placement of funds into, or movement of funds through or from, a 
company or financial institution outside the United States, or (B) 
otherwise involved the used of a sophisticated form of money 
laundering, increase by 2 levels.
    (c) Special Instruction for Receipt and Deposit Cases
    The offense level is 8 plus the number of offense levels from the 
table in Sec. 2F1.1 (Fraud and Deceit) corresponding to the value of 
the funds where all of the following are present:
    (1) the defendant's money laundering conduct is limited solely to 
the deposit of the unlawful proceeds into a domestic financial 
institution account that is readily identifiable as belonging to the 
person who committed the specified unlawful activity; (2) the offense 
was not intended or designed, either in whole or in part, to conceal or 
disguise the nature, location, source, ownership, or control of the 
proceeds of specified unlawful activity, to violate section 7201 or 
7206 of the Internal Revenue Code of 1986, or to avoid a transaction 
reporting requirement under State or Federal law; and
    (3) the specified unlawful activity did not involve a matter of 
national security or munitions control, a crime of violence, a firearm, 
an explosive, the sexual exploitation of children, or the manufacture, 
importation, or distribution of a controlled substance.

Commentary

    Statutory Provisions: 18 U.S.C. 1956, 1957.

Application Notes

    1. ``Value of the funds'' means the value of the funds or property 
involved in the financial or monetary transactions, transportation, 
transfers, or transmissions that the defendant knew or believed (A) 
were criminally derived funds or property, or (B) were to be used to 
promote criminal conduct.
    When a financial or monetary transaction, transfer, transportation, 
or transmission involves legitimately derived funds that have been 
commingled with criminally derived funds, the value of the funds is the 
amount of the criminally derived funds, not the total amount of the 
commingled funds. For example, if the defendant deposited $50,000 
derived from a bribe together with $25,000 of legitimately derived 
funds, the value of the funds is $50,000, not $75,000.
    Where a financial or monetary transaction, transfer, 
transportation, or transmission involves legitimately derived funds 
from a place in the United States to or through a place outside the 
United States or to a place in the United States from or through a 
place outside the United States with the intent to promote the carrying 
on of specified unlawful activity, the value of the funds is the amount 
intended to promote the carrying on of specified unlawful activity.
    2. If the defendant is to be sentenced both on a count for an 
offense from which the funds were derived and on a count under this 
guideline, the counts will be grouped together under subsection (c) of 
Sec. 3D1.2 (Groups of Closely-Related Counts).
    3. Subsection (b)(1)(A) is intended to provide an increase for 
those cases that involve efforts to make criminally derived funds 
appear to have a legitimate source. This subsection will apply, for 
example, when the defendant conducted a transaction through a straw 
party or a front company, concealed a money-laundering transaction in a 
legitimate business, or used an alias or otherwise provided false 
information to disguise the true source or ownership of the funds.
    4. In order for subsection (b)(1)(B) to apply, the defendant must 
have known or believed that the funds would be used to promote further 
criminal conduct, i.e., criminal conduct beyond the underlying criminal 
conduct from which the funds were derived.
    5. Subsection (b)(2) is designed to provide an additional increase 
for those money laundering cases that are more difficult to detect 
because sophisticated steps were taken to conceal the origin of the 
money. Subsection (b)(2)(B) will apply, for example, if the offense 
involved the `layering' of transactions, i.e., the creation of two or 
more levels of transaction that were intended to appear legitimate, or 
if the offense involved the use of individuals or organizations engaged 
in the business of money laundering, i.e., those who receive payment or 
other benefit for conducting or assisting in the transaction.
    6. The lower offense level provided by the special instruction in 
subsection (c) is reserved for offenses which meet the specified 
criteria. First, the defendant's money laundering conduct must be 
limited solely to the deposit of the unlawful proceeds into a domestic 
financial institution account that is readily identifiable as belonging 
to the person who committed the specified unlawful activity. Second, 
the offense cannot have been intended or designed, either in whole or 
in part, to conceal or disguise the nature, location, source, 
ownership, or control of the proceeds of the specified unlawful 
activity, to violate section 7201 or 7206 of the Internal Revenue Code 
of 1986, or to avoid a transaction reporting requirement under State or 
Federal law. Finally, the underlying unlawful activity must not have 
involved a matter of national security or munitions control, a crime of 
violence, a firearm, an explosive, the sexual exploitation of children, 
or the manufacture, importation, or distribution of a controlled 
substance.
    For example, a defendant who deposits a check constituting the 
proceeds of his or her spouse's specified unlawful activity into the 
spouse's account would qualify for the reduced level of subsection (c) 
if all the other limitations are present.''. 

[[Page 83]]


Food and Drug Offenses

Chapter Two, Parts D (Offenses Involving Drugs), F (Offenses Involving 
Fraud or Deceit), and N (Offenses Involving Food, Drugs, Agricultural 
Products, and Odometer Laws); Chapter Eight, Part C (Fines)

    3. Synopsis of Proposed Amendment: In 1993, the Commission 
established a Food and Drug Working Group to study the application of 
the guidelines to food and drug offenses and to assess the feasibility 
of developing organizational guidelines for offenses covered by 
Sec. 2N2.1. During the first year of its work, the group studied food 
and drug offenses and the operation of Sec. 2N2.1 as it applied to 
individual defendants. In its second year, the group focussed its 
attention on the development of organizational guidelines for these 
offenses. In February 1995, a final report was submitted to the 
Commission outlining the group's findings and conclusions. The report 
is available for inspection at the Commission or through the Depository 
Library System of the U.S. Government Printing Office. The report also 
can be downloaded through USSC OnLine, the Commission's public access 
electronic bulletin board, by dialing (202) 273-4709.
    On September 5, 1995, the Commission voted to publish for comment 
the working group's proposals for handling food and drug offenses under 
the guidelines. With minor changes to the fraud guideline (Sec. 2F1.1), 
the working group determined that food and drug cases for individuals 
and organizations could appropriately be sentenced under that 
guideline. The working group's proposal would delete existing 
Sec. 2N2.1 (Violations of Statutes and Regulations Dealing With Any 
Food, Drug, Biological Product, Device, Cosmetic, or Agricultural 
Product) in its entirety and replace references to that guideline in 
the statutory index with references to Sec. 2F1.1. To address concerns 
about risk of harm associated with these offenses, the working group 
recommended adding an application note to Sec. 2F1.1 inviting an upward 
departure in circumstances in which the offense placed a large number 
of persons at risk of serious bodily injury.

(A) Proposed Amendment--Consolidation of Secs. 2F1.1 and 2N2.1

    Section 2N2.1 is deleted in its entirety.
    Section 2F1.1 is amended in the title by inserting ``; Violations 
of Statutes and Regulations Dealing With Any Food, Drug, Biological 
Product, Device, Cosmetic, or Agricultural Product'' at the end 
thereof.
    The Commentary to Sec. 2F1.1 captioned ``Statutory Provisions'' is 
amended by inserting ``21 U.S.C. Secs. 101-105, 111, 115, 117, 120- 
122, 124, 126, 134(a)-(e), 135a, 141, 143-145, 151-158, 331, 333(a)(1)-
(2), 333(b), 458-461, 463, 466, 610-611, 614, 617, 619- 620, 642-644, 
676'' immediately following ``2315''.
    The Commentary to Sec. 8C2.1 captioned ``Application Notes'' is 
amended in Note 2 by deleting the second sentence.
    Appendix A is amended as follows:
    in the line beginning ``7 U.S.C. Sec. 87b'' by deleting ``2N2.1'' 
and inserting in lieu thereof ``2F1.1'';
    in the lines beginning ``7 U.S.C. Sec. 149'' through ``7 U.S.C. 
Sec. 195'' by deleting ``2N2.1'' and inserting in lieu thereof 
``2F1.1'';
    in the lines beginning ``7 U.S.C. Sec. 281'' through ``7 U.S.C. 
Sec. 516'' by deleting ``2N2.1'' and inserting in lieu thereof 
``2F1.1'';
    in the lines beginning ``21 U.S.C. Sec. 101'' through ``21 U.S.C. 
Sec. 333(a)(1)'' by deleting ``2N2.1'' and inserting in lieu thereof 
``2F1.1'';
    in the line beginning ``21 U.S.C. Sec. 333(a)(2)'' by deleting ``, 
2N2.1'';
    in the lines beginning ``21 U.S.C. Sec. 333(b)'' through ``21 
U.S.C. Sec. 620'' by deleting ``2N2.1'' and inserting in lieu thereof 
``2F1.1'';
    in the lines beginning ``21 U.S.C. Sec. 642'' through ``21 U.S.C. 
Sec. 644'' by deleting ``2N2.1'' and inserting in lieu thereof 
``2F1.1'';
    in the line beginning ``21 U.S.C. Sec. 676'' by deleting ``2N2.1'' 
and inserting in lieu thereof ``2F1.1'';
    in the line beginning ``42 U.S.C. Sec. 262'' by deleting ``2N2.1'' 
and inserting in lieu thereof ``2F1.1''.

(B) Proposed Amendment--Upward Departures for Offenses Involving Risk 
to a Large Number of Persons

    The Commentary to Sec. 2F1.1 captioned ``Application Notes'' is 
amended by inserting the following additional note:
    ``11. Subsection (b)(4) applies when the offense caused a conscious 
or reckless risk of serious bodily injury to one or more persons. If 
the risk affected a large number of persons, an upward departure may be 
warranted.''
    and by renumbering notes 11-18 as 12-19, respectively.

(C) Additional Issue for Comment

    The Commission invites comment as to whether ``gain'' should be a 
substitute for ``loss'' when the essence of the offense is fraud 
against regulatory authorities with no economic loss. Currently, 
Application Note 8 of Sec. 2F1.1 provides that gain realized from a 
covered offense is an alternative estimate that ordinarily will 
underestimate the loss. The Fourth and Seventh Circuits have held, 
however, that when a case involves no loss, the defendant's gain may 
not be used to calculate loss under Sec. 2F1.1. See United States v. 
Chatterji, 46 F. 3d 1336 (4th Cir. 1995) and United States v. Anderson, 
45 F. 3d 217 (7th Cir. 1995).

[FR Doc. 95-31570 Filed 12-29-95; 8:45 am]
BILLING CODE 2210-40-P