[Federal Register Volume 65, Number 216 (Tuesday, November 7, 2000)]
[Notices]
[Pages 66792-66799]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-28564]



[[Page 66792]]

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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: Pursuant to section 994(a), (o), and (p) of title 28, United 
States Code, 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 specific amendments proposed in this notice are summarized as 
follows: (1) proposed amendment to address aggravating conduct 
associated with the unlawful supplementation of the salary of certain 
federal employees and to consolidate Secs. 2C1.3 (Conflict of 
Interest), 2C1.4 (Payment or Receipt of Unauthorized Compensation), and 
2C1.5 (Payments to Obtain Public Office) to simplify overall guideline 
application for covered offenses; (2) proposed amendment to Sec. 2B5.1 
(Offenses Involving Counterfeit Bearer Obligations of the United 
States) to increase the base offense level and to replace the minimum 
offense level for manufacturing offenses with a two-level enhancement; 
(3) proposed amendment to Sec. 2H3.1 (Interception of Communications or 
Eavesdropping) to address several offenses relating to the unlawful 
disclosure and/or inspection of tax return information; and (4) 
proposed amendments that address four circuit conflicts as follows: (A) 
proposed amendment to Sec. 1B1.2 (Applicable Guidelines) to provide 
that a factual statement made by a defendant at a plea colloquy is not 
a stipulation for purposes of Sec. 1B1.2(a) unless that statement is 
agreed to as part of the plea agreement; (B) two options for amending 
Sec. 2A2.2 (Aggravated Assault) to clarify that (i) both the base 
offense level and the weapon use enhancement in Sec. 2A2.2(b)(2) shall 
apply to aggravated assaults that involve a dangerous weapon with 
intent to cause bodily injury; and (ii) instruments, such as a car or 
chair, that ordinarily are not used as weapons may qualify as dangerous 
weapons for purposes of Sec. 2A2.2(b)(2) if the defendant involves them 
in the offense with the intent to cause bodily injury; (C) proposed 
amendment to Sec. 2F1.1 (Fraud and Deceit) to provide for application 
of the enhancement in Sec. 2F1.1(b)(4)(A) if either (i) the defendant 
falsely represented that the defendant was an employee of a covered 
organization or a government agency; or (ii) the defendant, an employee 
of a covered organization or a government agency, represented that the 
defendant was acting solely for the benefit of the organization or 
agency when, in fact, the defendant intended to divert all or part of 
that benefit (for example, for the defendant's personal gain); and (D) 
proposed amendment to Sec. 3B1.2 (Mitigating Role) to provide that a 
defendant in a drug trafficking offense whose role was limited to 
transporting or storing drugs and who was accountable only for the 
drugs the defendant personally transported or stored, is not precluded 
from receiving a mitigating role adjustment, even in a single defendant 
case.

DATES: Written public comment should be received by the Commission not 
later than January 8, 2001.

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

FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Affairs 
Officer, Telephone: (202) 502-4590.

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).
    The proposed amendments are presented in this notice in one of two 
formats. First, some of the amendments are proposed as specific 
revisions to a guideline or commentary. Bracketed text within a 
proposed amendment indicates a heightened interest on the Commission's 
part for comment and suggestions for alternative policy choices; for 
example, a proposed enhancement of [2] levels indicates that the 
Commission is considering, and invites comment on, alternative policy 
choices regarding the appropriate level of enhancement. Similarly, 
bracketed text within a specific offense characteristic or application 
note means that the Commission specifically invites comment on whether 
the proposed provision is appropriate. Second, the Commission has 
highlighted certain issues for comment and invites suggestions for how 
the Commission should respond to those issues.
    Reports and other additional information pertaining to the proposed 
amendments described in this notice may be accessed through the 
Commission's website at www.ussc.gov.

    Authority: 28 U.S.C. 994 (a), (o), (p), (x); USSC Rules of 
Practice and Procedure 4.3, 4.4.

Diana E. Murphy,
Chair.

Proposed Amendment: Unauthorized Compensation

1. Synopsis of Proposed Amendment

    This proposed amendment addresses the issue of whether, and to what 
extent, the guideline offense levels should be increased in Sec. 2C1.4, 
the guideline for offenses in 18 U.S.C. 209 involving the unlawful 
supplementation of the salary of various federal employees. The 
proposed amendment (A) adds a cross reference to the bribery and 
gratuity guidelines, in order to account for aggravating conduct; and 
(B) consolidates the unauthorized compensation guideline (Sec. 2C1.4) 
with the conflict of interest guideline (Sec. 2C1.3) and the guideline 
covering payments to obtain public office (Sec. 2C1.5), to promote ease 
of application.
    The Commission began to focus on this issue in 1998 when it 
promulgated an amendment to Sec. 2C1.4 to delete outdated, erroneous 
background commentary. That commentary, first written in 1987, 
described the offenses covered by the guideline as misdemeanors 
punishable by imprisonment for not more than one year. In fact, 
however, the penalties for 18 U.S.C. 209 offenses were changed in 1989. 
The applicable penalties, under 18 U.S.C. 216, became (1) imprisonment 
for not more than one year; or (2) imprisonment for not more than five 
years, if the defendant willfully engaged in the conduct constituting 
the offense.
    The increased statutory penalties under 18 U.S.C. 216 implicate the 
question of whether guideline penalties under Secs. 2C1.3 and 2C1.4 
should be increased correspondingly, particularly if the current 
guideline penalty structure inadequately takes into account aggravating 
conduct associated with these offenses.
    The guideline covering offenses in 18 U.S.C. 209, Sec. 2C1.4, has a 
base offense level of level 6 and no additional

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enhancements that take into account aggravating conduct. From FY91 
through FY99, a total of 73 cases were sentenced under Sec. 2C1.4. 
Because of the low offense levels associated with this guideline, all 
of the defendants sentenced under Sec. 2C1.4 received probation.
    Moreover, the increased statutory penalty in 18 U.S.C. 216 (namely, 
the five-year statutory maximum for willful conduct) applies not only 
to offenses under 18 U.S.C. 209 but also to bribery, graft, and 
conflict of interest offenses under 18 U.S.C. 203, 204, 205, 207, and 
208, all of which are covered by the conflict of interest guideline, 
Sec. 2C1.3. That guideline has a base offense level of level 6 and a 
four-level enhancement if the offense involved actual or planned harm 
to the government. From FY91 through FY99, a total of 71 cases were 
sentenced under Sec. 2C1.3, and only 10 of those cases received the 
enhancement for actual or planned harm to the government.
    Commission staff review of the cases sentenced under Secs. 2C1.3 
and 2C1.4 revealed that many of those cases actually involved a bribe 
or a gratuity. In other words, many of these defendants likely could 
have been charged under a bribery or gratuity statute (most likely 18 
U.S.C. 201) and sentenced under the more serious bribery (Sec. 2C1.1) 
or gratuity (Sec. 2C1.2) guideline but were convicted under the less 
serious statutes and sentenced under the less severe guidelines (i.e., 
Secs. 2C1.3 and 2C1.4).
    The following proposed amendment is intended to address these 
issues by (A) adding a cross reference from Sec. 2C1.4 to the bribery 
and gratuity guidelines, in order to account for aggravating conduct; 
and (B) consolidating the unauthorized compensation guideline with the 
conflict of interest guideline and the guideline covering payments to 
obtain public office, to promote ease of application. First, in order 
to more adequately account for aggravating conduct prevalent in these 
cases (i.e., the presence of a bribe or a gratuity), the proposed 
amendment provides a cross reference to Sec. 2C1.1 (in the case of a 
bribe) or Sec. 2C1.2 (in the case of a gratuity), which will apply on 
the basis of the underlying conduct; i.e., as a sentencing factor 
rather than a count of conviction factor.
    Second, in order to simplify overall guideline operation, the 
proposed amendment consolidates Secs. 2C1.3 (Conflict of Interest), 
2C1.4 (Payment or Receipt of Unauthorized Compensation), and 2C1.5 
(Payments to Obtain Public Office). Although the elements of the 
offenses of conflict of interest (currently covered by Sec. 2C1.3) and 
unauthorized compensation (currently covered by Sec. 2C1.4) differ in 
some ways, the gravamen of the offenses is similar--unauthorized 
receipt of a payment in respect to an official act. The base offense 
levels for both guidelines are identical. However, the few cases in 
which these guidelines were applied usually involved a conflict of 
interest offense that was associated with a bribe or gratuity.
    The guideline covering payments to obtain public office, 
Sec. 2C1.5, is also consolidated under the proposed amendment. Offenses 
involving payment to obtain public office generally, but not always, 
involve the promised use of influence to obtain public appointive 
office. Also, such offenses need not involve a public official (see, 
for example, the second paragraph of 18 U.S.C. 211). The current 
offense level for all such offenses is level 8. The two statutes to 
which Sec. 2C1.5 applies (18 U.S.C. 210 and 211) are both Class A 
misdemeanors. Under the proposed consolidation, the base offense level 
would be level 6, but the higher base offense level of Sec. 2C1.5 would 
be taken into account by a two-level enhancement in subsection 
(b)(1)(B) covering conduct under 18 U.S.C. 210 and the first paragraph 
of 18 U.S.C. 211. There is one circumstance in which a lower offense 
level may result and one circumstance in which a higher offense level 
may result. The offense level for conduct under the second paragraph of 
18 U.S.C. 211 (the prong of Sec. 211 that does not pertain to the 
promise or use of influence) is reduced from level 8 to level 6. On the 
other hand, conduct that involves a bribe of a government official will 
result in an increased offense level (level 10 or greater, compared to 
level 8) under the proposed cross reference.

Proposed Amendment

    Section 2C1.3 is amended in the title by inserting ``; Payment or 
Receipt of Unauthorized Compensation; Payments to Obtain Public 
Office'' after ``Interest''.
    Section 2C1.3(b) is amended by striking subdivision (1) in its 
entirety and inserting the following:
    ``(1) (Apply the greater):
    (A) if the offense involved actual or planned harm to the 
government, increase by 4 levels; or
    (B) if the offense involved (i) the payment, offer, or promise of 
any money or thing of value in consideration for the use of, or promise 
to use, any influence to procure an appointive federal position for any 
person; or (ii) the solicitation or receipt of any money or thing of 
value in consideration of the promise of support, or use of influence, 
in obtaining an appointive federal position for any person, increase by 
2 levels.''.
    Section 2C1.3 is amended by adding after subsection (b) the 
following new subsection:
    ``(c) Cross Reference
    (1) If the offense involved a bribe or gratuity, apply Sec. 2C1.1 
(Offering, Giving, Soliciting, or Receiving a Bribe; Extortion Under 
Color of Official Right) or Sec. 2C1.2 (Offering, Giving, Soliciting, 
or Receiving a Gratuity), as appropriate, if the resulting offense 
level is greater than determined above.''.
    The Commentary to Sec. 2C1.3 captioned ``Statutory Provisions'' is 
amended by inserting ``, 209, 210, 211, 1909'' after ``208''.
    The Commentary to Sec. 2C1.3 captioned ``Application Note'' is 
amended in Note 1 by inserting ``Abuse of Position of Trust.--'' before 
``Do not''.
    The Commentary to Sec. 2C1.3 is amended by striking the background 
note in its entirety.
    Sections 2C1.4 and 2C1.5 are deleted in their entirety.

Proposed Amendment: Counterfeiting Offenses

2. Synopsis of Proposed Amendment

     This proposed amendment (A) increases the base offense level in 
Sec. 2B5.1 (Offenses Involving Counterfeit Bearer Obligations of the 
United States) from level 9 to level 10; (B) replaces the minimum 
offense level of level 15 for manufacturing offenses with a two-level 
enhancement; and (C) proposes to delete commentary that suggests that 
the manufacturing adjustment does not apply if the defendant ``merely 
photocopies''.
    First, the amendment increases the base offense level from level 9 
to level 10. Setting the base offense level at level 10 for 
counterfeiting crimes promotes proportionality in sentencing for 
counterfeiting vis-a-vis other, similar economic crimes. For example, 
fraud crimes sentenced under Sec. 2F1.1 (Fraud and Deceit) receive a 
base offense level of level 6 and almost invariably (roughly 85% of the 
time) two additional levels for ``more than minimal planning.'' Thus, 
before any ``loss'' enhancement is applied, fraud defendants are 
routinely at a minimum of level 8. Placing the base offense level for 
counterfeiting at level 10 recognizes that counterfeiting causes 
greater harm than fraud in its most basic form in that counterfeiting 
undermines public confidence in the currency and causes the government 
to spend great sums of money to build

[[Page 66794]]

anti-counterfeiting safeguards into the currency.
    Second, the amendment replaces the minimum offense level of level 
15 for manufacturing offenses with a two-level enhancement. Replacing 
the minimum offense level of level 15 with a two-level enhancement has 
a double benefit. First, it eliminates the cliff inherent in setting a 
sentencing minimum. Specifically, the existing minimum of level 15 for 
manufacturing activity takes all defendants who engage in manufacturing 
to level 15 regardless of the economic harm caused. This means that the 
manufacturer of twenty dollars worth of counterfeit, who many would 
contend does not deserve to be sentenced at offense level 15, receives 
the same sentence as the manufacturer of seventy thousand dollars worth 
of counterfeit. In the context of a system which recognizes the 
magnitude of economic harm caused as a prime determinant of relative 
culpability, this disproportionate grouping of all manufacturers at 
level 15 is neither logical nor desirable.
    A second benefit of this change is that, unlike the current 
guideline, which provides no incremental punishment for manufacturers 
of more than seventy thousand dollars in counterfeit, the proposed two-
level enhancement provides reasonable incremental punishment for all 
manufacturers. Such a result also fosters the central goal of 
proportionate sentencing.
    Third, the amendment proposes to delete the language in Application 
Note 4 that suggests, as a minority of courts have interpreted it, that 
the manufacturing adjustment does not apply if the defendant ``merely 
photocopies''. That application note was intended to make the minimum 
offense level for manufacturing offenses inapplicable to notes that are 
so obviously counterfeit that they are unlikely to be accepted. 
Particularly with the advent of digital technology, it cannot be said 
that photocopying necessarily produces a note so obviously counterfeit 
as to be impassible.

Proposed Amendment

    Section 2B5.1(a) is amended by striking ``9'' and inserting ``10''.
    Section 2B5.1(b)(2) is amended by striking ``and the offense level 
as determined above is less than 15, increase to level 15'' and 
inserting ``increase by 2 levels''.
    The Commentary to Sec. 2B5.1 captioned ``Application Notes'' is 
amended in Note 4 by striking ``merely photocopy notes or otherwise''.
    Issue for comment: The Commission invites comment on whether it 
should amend Sec. 2B5.1 (Offenses Involving Counterfeit Bearer 
Obligations of the United States) to include an enhancement (e.g., a 
two-level enhancement) for counterfeiting offenses that involve 
``sophisticated means''. If so, what conduct should constitute 
``sophisticated means'' in the context of counterfeiting offenses? For 
example, should the use of technology, such as digital counterfeiting, 
generally be considered sophisticated? Alternatively, are there 
particular forms of technology, such as particular forms of digital 
counterfeiting, that would be considered sophisticated for purposes of 
an enhancement?

Proposed Amendment: Tax Privacy

3. Synopsis of Proposed Amendment

    This amendment proposes to address several offenses relating to 
unlawful disclosure and/or inspection of tax return information. The 
amendment proposes to (A) amend the Statutory Index to refer most of 
those offenses to the guideline covering eavesdropping and interception 
of communications, Sec. 2H3.1; and (B) amend Sec. 2H3.1 to add a three-
level decrease in the base offense level for the least serious types of 
offense behavior.
    The pertinent offenses are:
    (A) 26 U.S.C. 7213(a)(1)-(3), and (5), which makes it unlawful for 
federal and state employees and certain other people willfully to 
disclose any tax return or tax return information (for a maximum term 
of imprisonment of five years);
    (B) 26 U.S.C. 7213(d), which makes it unlawful for any person 
willfully to divulge tax-related computer software (for a maximum term 
of imprisonment of five years);
    (C) 26 U.S.C. 7213A, which makes it unlawful for federal employees 
and certain other persons willfully to inspect any tax return or tax 
return information (for a maximum term of imprisonment of one year); 
and
    (D) 26 U.S.C. 7216, which makes it unlawful for any person engaged 
in the business of preparing tax returns knowingly or recklessly to 
disclose any information furnished to that person in connection with 
preparation of a return (for a maximum term of imprisonment of one 
year).
    The following proposed amendment refers these offenses to 
Sec. 2H3.1 and provides for a three-level downward adjustment in the 
base offense level for the least serious types of offense behavior, 
i.e., the inspection (but not disclosure) of tax return information, 
and the reckless or knowing disclosure of information collected by a 
tax preparer in preparation of a tax return. The proposed amendment 
also (A) adds, in bracketed form, an application note to make clear 
that an adjustment for abuse of position of trust may apply; and (B) 
makes a technical change in subsection (b)(1) that is not intended to 
have substantive effect.

Proposed Amendment

    Section 2H3.1 is amended in the title by striking ``or'' and 
inserting a semicolon after ``Communications''; and by inserting ``; 
Disclosure of Tax Return Information'' after ``Eavesdropping''.
    Section 2H3.1 is amended by striking subsection (a) in its entirety 
and inserting the following:
    ``(a) Base Offense Level:
    (1) 9; or
    (2) 6, if the offense involved only (A) inspection, but not 
disclosure, of a tax return or tax return information; or (B) a knowing 
or reckless disclosure of information furnished to a tax return 
preparer in connection with the preparation of a tax return.''.
    Section 2H3.1(b)(1) is amended by striking ``conduct'' and 
inserting ``offense''.
    The Commentary to Sec. 2H3.1 captioned ``Statutory Provisions'' is 
amended by inserting ``26 U.S.C. Secs. 7213(a)(1)-(a)(3), (a)(5), (d), 
7213A, 7216;'' after ``2511;''.
    The Commentary to Sec. 2H3.1 captioned ``Application Note'' is 
amended by striking ``Note'' and inserting ``Notes''; by redesignating 
Note 1 as Note 2; and by inserting the following as new Note 1:
    ``1. Definitions.--For purposes of this guideline, `tax return' and 
`tax return information' have the meaning given the terms `return' and 
`return information' in 26 U.S.C. Sec. 6013(b)(1) and (2), 
respectively.''.
    The Commentary to Sec. 2H3.1 captioned ``Application Notes'' (as 
re-captioned by this amendment) is amended in redesignated Note 2 
(formerly Note 1) by inserting ``Satellite Cable Transmissions.--'' 
before ``If the''.
    [The Commentary to Sec. 2H3.1 captioned ``Application Notes'' (as 
re-captioned by this amendment) is amended by adding at the end the 
following:
    ``3. Abuse of Position of Trust.--A defendant who used a special 
skill or abused a position of trust in the commission of the offense 
may be subject to an adjustment under Sec. 3B1.3 (Abuse of Position of 
Trust or Use of Special Skill). For example, a federal or state 
employee who unlawfully disclosed a tax return or tax return 
information in violation of 26 U.S.C.

[[Page 66795]]

7213(a) or (b) may have occupied a position of public trust, as 
described in Application Note 1 of Sec. 3B1.3, and may have used that 
position to significantly facilitate the commission of the offense.''.]
    The Commentary to Sec. 2H3.1 captioned ``Background'' is amended by 
adding at the end the following additional paragraph:
    ``This section also refers to conduct relating to the disclosure 
and inspection of tax returns and tax return information, which is 
proscribed by 26 U.S.C. 7213(a)(1)-(3), (5), (d), 7213A, and 7216. 
These statutes provide for a maximum term of imprisonment of five years 
for most types of disclosure of tax return information.''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to ``26 U.S.C. 7212(b)'' the following new lines:
``26 U.S.C. 7213(a)(1)  2H3.1
26 U.S.C. 7213(a)(2)  2H3.1
26 U.S.C. 7213(a)(3)  2H3.1
26 U.S.C. 7213(a)(5)  2H3.1
26 U.S.C. 7213(d) 2H3.1
26 U.S.C. Sec. 7213A  2H3.1''; and by inserting after the line 
referenced to ``26 U.S.C. 7215'' the following new line:
``26 U.S.C. 7216  2H3.1''.

Proposed Amendment: Circuit Conflict Concerning Stipulations

4. Synopsis of Proposed Amendment:

    This proposed amendment addresses the circuit conflict regarding 
whether admissions made by the defendant during his guilty plea 
hearing, without more, can be considered ``stipulations'' for purposes 
of Sec. 1B1.2(a). Compare, e.g., United States v. Nathan, 188 F. 3d 
190, 201 (3d Cir. 1999) (statements made by defendants during the 
factual-basis hearing for a plea agreement do not constitute 
``stipulations'' for the purpose of this enhancement; a statement is a 
stipulation only if it is part of a defendant's written plea agreement 
or if both the government and the defendant explicitly agree at a 
factual-basis hearing that the facts being placed on the record are 
stipulations that might subject the defendant to Sec. 1B1.2(a)), with 
United States v. Loos, 165 F. 3d 504, 508 (7th Cir. 1998) (the 
objective behind Sec. 1B1.2(a) is best answered by interpreting 
``stipulations'' to mean any acknowledgment by the defendant that the 
defendant committed the acts that justify use of the more serious 
guideline, not in the formal agreement).
    The proposed amendment represents a narrow approach to the majority 
view that a factual statement made by the defendant during the plea 
colloquy must be made as part of the plea agreement in order to be 
considered a stipulation for purposes of Sec. 1B1.2(a). This approach 
lessens the possibility that the plea agreement will be modified during 
the course of the plea proceeding without providing the parties, 
especially the defendant, with notice of the defendant's potential 
sentencing range.

Proposed Amendment

    The Commentary to Sec. 1B1.2 captioned ``Application Notes'' is 
amended in Note 1 in the third sentence of the first paragraph of Note 
1 by inserting ``(written or made orally on the record)'' after 
``agreement''.
    The Commentary to Sec. 1B1.2 captioned ``Application Notes'' is 
amended in Note 1 by striking the first two sentences of the third 
paragraph and inserting: ``As set forth in the first paragraph of this 
note, an exception to this general rule is that if a plea agreement 
(written or made orally on the record) contains a stipulation that 
establishes a more serious offense than the offense of conviction, the 
guideline section applicable to the stipulated offense is to be used. A 
factual statement made by the defendant during the plea proceeding is 
not a stipulation for purposes of subsection (a) unless such statement 
was agreed to as part of the plea agreement.''.
    The Commentary to Sec. 1B1.2 captioned ``Application Notes'' is 
amended in Note 1 in the third paragraph by striking ``The sentence 
that may'' and inserting ``The sentence that shall''.
    The Commentary to Sec. 1B1.2 captioned ``Application Notes'' is 
amended in Note 1 in the second sentence of the fourth paragraph by 
striking ``cases where'' and inserting ``a case in which''.

Proposed Amendment: Circuit Conflict Concerning Aggravated Assault

5. Synopsis of Proposed Amendment

    This proposed amendment addresses the circuit conflict regarding 
whether the four-level enhancement in subsection (b)(2)(B) of 
Sec. 2A2.2 (Aggravated Assault) for use of a dangerous weapon during an 
aggravated assault is impermissible double counting in a case in which 
the weapon that was used was a non-inherently dangerous weapon. Compare 
e.g., United States v. Williams, 954 F.2d 204, 205-08 (4th Cir. 1992) 
(applying the dangerous weapon enhancement for defendant's use of a 
chair did not constitute impermissible double counting even though the 
use of the chair increased the defendant's offense level twice: first 
by triggering application of the aggravated assault guideline and 
second as the basis for the dangerous weapon enhancement), with United 
States v. Hudson, 972 F.2d 504, 506-07 (2d Cir. 1992) (in a case in 
which the use of an automobile caused the crime to be classified as an 
aggravated assault, the court may not enhance the base offense level 
under Sec. 2A2.2(b) for use of the same non-inherently dangerous 
weapon).
    This amendment presents two options. Both options address the 
circuit conflict by clarifying in the aggravated assault guideline that 
(A) both the base offense level of level 15 and the weapon use 
enhancement in subsection (b)(2) shall apply to aggravated assaults 
that involve a dangerous weapon with intent to cause bodily harm; and 
(B) instruments, such as a car or chair, that ordinarily are not used 
as weapons may qualify as a dangerous weapon for purposes of subsection 
(b)(2) when the defendant involves them in the offense with the intent 
to cause bodily harm.
    The difference between the options is that, unlike Option One, 
Option Two proposes other substantive changes in the aggravated assault 
guideline to address additional problems with the guideline. 
Specifically, Option Two attempts more explicitly and thoroughly than 
Option One to address one of the key issues underlying the circuit 
conflict, i.e., what conduct is incorporated in the base offense level. 
The aggravated assault guideline covers three types of aggravated 
assault: felonious assaults that involve any one of the following: (A) 
Serious bodily injury; (B) a dangerous weapon with intent to cause 
bodily harm; and (C) intent to commit another felony. See Application 
Note 1 of Sec. 2A2.2. Unlike the current guideline, which has one base 
offense level of level 15 for all types of aggravated assault, Option 
Two provides for each type of aggravated assault a base offense level 
that is intended to cover that type of assault in its most basic form, 
unaccompanied by further aggravated conduct. Accordingly, Option Two 
provides two alternative base offense levels: (A) Level 19, if the 
offense involved serious bodily injury; and (B) level 15, otherwise 
(i.e., if the offense involved either an intent to commit another 
felony or a dangerous weapon with the intent to cause bodily injury).
    The base offense level of level 19 for offenses under 18 U.S.C. 
113(a)(6) (assaults resulting in serious bodily injury) achieves the 
same offense level as should be achieved under the current guideline by 
application of the base offense level and the serious bodily injury 
enhancement in subsection (b)(3)(B). However, FY 1999 data show

[[Page 66796]]

that 16 percent of the 63 cases that involved a conviction under 18 
U.S.C. 113(a)(6) either received no bodily injury enhancement or 
received an enhancement lower than the four-level enhancement required 
for serious bodily injury. Therefore, either there may be confusion 
about what conduct the base offense level incorporates for these types 
of aggravated assaults or application of the serious bodily injury 
enhancement is being avoided in cases in which it is warranted. 
Incorporating the serious bodily injury enhancement into the base 
offense level may help to ameliorate these concerns.

Proposed Amendment

Option 1
    The Commentary to Sec. 2A2.2 captioned ``Application Notes'' is 
amended in Note 1 by inserting ``Definitions.--For purposes of this 
guideline:'' before `` `Aggravated assault' ''; by striking ``do bodily 
harm'' and inserting ``cause bodily injury''; by striking the comma 
after ``frighten)'' and inserting ``with that weapon;''; by striking 
the comma before ``or (C)'' and inserting a semicolon; and by adding at 
the end the following paragraphs:
    `Brandished,' `bodily injury,' `firearm,' `otherwise used,'' 
`permanent or life-threatening bodily injury,' and `serious bodily 
injury,' have the meaning given those terms in Sec. 1B1.1, Application 
Note 1.
    ``Dangerous weapon' has the meaning given that term in Sec. 1B1.1, 
Application Note 1. For purposes of this guideline, and pursuant to 
that application note, `dangerous weapon' includes any instrument that 
is not ordinarily used as a weapon (e.g., a car, a chair, or an ice 
pick) if such an instrument is involved in the offense with the intent 
to commit bodily injury.
    `More than minimal planning,' has the meaning given that term in 
Sec. 1B1.1, Application Note 1.
    The Commentary to Sec. 2A2.2 captioned ``Application Notes'' is 
amended by striking Notes 2 and 3 in their entirety and inserting the 
following:
    ``2. Aggravating Factors.--This guideline covers felonious assaults 
that are more serious than minor assaults because of the presence of 
certain aggravating factors, i.e., serious bodily injury, the 
involvement of a dangerous weapon with intent to cause bodily injury, 
and the intent to commit another felony.
    An assault that involves the presence of a dangerous weapon is 
aggravated in form when the presence of the dangerous weapon is coupled 
with the intent to cause bodily injury. In such a case, the base 
offense level and the weapon use enhancement in subsection (b)(2) take 
into account different aspects of the offense. The base offense level 
takes into account the presence of the dangerous weapon (regardless of 
the manner in which the weapon was involved) and the fact that the 
defendant intended to cause bodily injury. Subsection (b)(2), on the 
other hand, takes into account the manner in which the dangerous weapon 
was involved in the offense. Accordingly, 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).
    3. More than Minimal Planning.--For purposes of subsection (b)(1), 
waiting to commit the offense when no witnesses were present would not 
alone constitute more than minimal planning. However, luring the victim 
to a specific location or wearing a ski mask to prevent identification 
would constitute more than minimal planning.''.
    The Commentary to Sec. 2A2.2 captioned ``Background'' is amended in 
the first paragraph by adding at the end the following:
    ``This guideline also covers attempted manslaughter and assault 
with intent to commit manslaughter. Assault with intent to commit 
murder is covered by Sec. 2A2.1 (Assault with Intent to Commit Murder). 
Assault with intent to commit rape is covered by Sec. 2A3.1 (Criminal 
Sexual Abuse).''; and by striking the second paragraph in its entirety 
and inserting the following:
    ``There are a number of federal provisions that address varying 
degrees of assault and battery. For example, if the assault is upon a 
federal officer while engaged in or on account of the performance of 
official duties, the maximum term of imprisonment pursuant to 18 U.S.C. 
111(a)(2) is three years. If a deadly or dangerous weapon is used in 
the assault on a federal officer, or if the assault results in bodily 
injury, the maximum term of imprisonment is ten years. If a dangerous 
weapon is used to assault a person who is not a federal officer, and 
the weapon was used with the intent to do bodily harm, without just 
cause or excuse, the maximum term of imprisonment pursuant to 18 U.S.C. 
113(a)(3) also is ten years. If an assault results in serious bodily 
injury, the maximum term of imprisonment pursuant to 18 U.S.C. 
113(a)(6) is ten years, unless the injury constitutes maiming by 
scalding, corrosive, or caustic substances pursuant to 18 U.S.C. 114, 
in which case the maximum term of imprisonment is twenty years.''.
    Option 2:
    Section 2A2.2 is amended by striking subsection (a) in its entirety 
and inserting the following: ``(a) Base Offense Level (Apply the 
greater):
    (1) 19, if the offense involved serious bodily injury; or
    (2) 15, otherwise.''.
    Section 2A2.2 is amended by striking subsection (b)(3) in its 
entirety and inserting the following:
    ``(3) (A) If subsection (a)(1) applies, and the victim sustained 
(i) permanent or life-threatening bodily injury, increase by 2 levels; 
or (ii) an injury that is between serious bodily injury and permanent 
or life-threatening bodily injury, increase by 1 level. However, the 
cumulative enhancements from this subdivision and subsection (b)(2) 
shall not exceed 5 levels.
    (B) If subsection (a)(2) applies, and the victim sustained (i) 
bodily injury, increase by 2 levels; or (ii) an injury between bodily 
injury and serious bodily injury, increase by 3 levels.''.
    The Commentary to Sec. 2A2.2 captioned ``Application Notes'' is 
amended in Note 1 by inserting `Definitions.'For purposes of this 
guideline:'' before ``'Aggravated assault'''; by striking ``do bodily 
harm'' and inserting ``cause bodily injury''; by striking the comma 
after ``frighten)'' and inserting ``with that weapon;''; by striking 
the comma before ``or (C)'' and inserting a semicolon; and by adding at 
the end the following paragraphs:
    `Brandished,' `bodily injury,' `firearm,' `otherwise used,' 
`permanent or life-threatening bodily injury,' and `serious bodily 
injury,' have the meaning given those terms in Sec. 1B1.1, Application 
Note 1.
    `Dangerous weapon' has the meaning given that term in Sec. 1B1.1, 
Application Note 1. For purposes of this guideline, and pursuant to 
that application note, `dangerous weapon' includes any instrument that 
is not ordinarily used as a weapon (e.g., a car, a chair, or an ice 
pick) if such an instrument is involved in the offense with the intent 
to commit bodily injury.
    `More than minimal planning,' has the meaning given that term in 
Sec. 1B1.1, Application Note 1.
    The Commentary to Sec. 2A2.2 captioned ``Application Notes'' is 
amended by striking Notes 2 and 3 in their entirety and inserting the 
following:
    ``2. Aggravating Factors.--This guideline covers felonious assaults 
that are more serious than minor assaults because of the presence of 
certain aggravating factors, i.e., serious bodily injury, the 
involvement of a dangerous weapon with intent to cause bodily injury, 
and/or the intent to commit another felony.

[[Page 66797]]

    An assault that involves the presence of a dangerous weapon is 
aggravated in form when the presence of the dangerous weapon is coupled 
with the intent to cause bodily injury. In such a case, the base 
offense level and the weapon use enhancement in subsection (b)(2) take 
into account different aspects of the offense. The base offense level 
takes into account the presence of the dangerous weapon (regardless of 
the manner in which the weapon was involved) and the fact that the 
defendant intended to cause bodily injury. Subsection (b)(2), on the 
other hand, takes into account the manner in which the dangerous weapon 
was involved in the offense. Accordingly, 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).
    3. More than Minimal Planning.--For purposes of subsection (b)(1), 
waiting to commit the offense when no witnesses were present would not 
alone constitute more than minimal planning. However, luring the victim 
to a specific location or wearing a ski mask to prevent identification 
would constitute more than minimal planning.''.
    The Commentary to Sec. 2A2.2 captioned ``Background'' is amended in 
the first paragraph by adding at the end the following:
    ``This guideline also covers attempted manslaughter and assault 
with intent to commit manslaughter. Assault with intent to commit 
murder is covered by Sec. 2A2.1 (Assault with Intent to Commit Murder). 
Assault with intent to commit rape is covered by Sec. 2A3.1 (Criminal 
Sexual Abuse).''; and by striking the second paragraph in its entirety 
and inserting the following:
    ``There are a number of federal provisions that address varying 
degrees of assault and battery. For example, if the assault is upon a 
federal officer while engaged in or on account of the performance of 
official duties, the maximum term of imprisonment pursuant to 18 U.S.C. 
111(a)(2) is three years. If a deadly or dangerous weapon is used in 
the assault on a federal officer, or if the assault results in bodily 
injury, the maximum term of imprisonment is ten years. If a dangerous 
weapon is used to assault a person who is not a federal officer, and 
the weapon was used with the intent to do bodily harm, without just 
cause or excuse, the maximum term of imprisonment pursuant to 18 U.S.C. 
Sec. 113(a)(3) also is ten years. If an assault results in serious 
bodily injury, the maximum term of imprisonment pursuant to 18 U.S.C. 
113(a)(6) is ten years, unless the injury constitutes maiming by 
scalding, corrosive, or caustic substances pursuant to18 U.S.C. 
Sec. 114, in which case the maximum term of imprisonment is twenty 
years.''.

Proposed Amendment: Circuit Conflict Concerning Certain Fraudulent 
Misrepresentations

6. Synopsis of Proposed Amendment

    This proposed amendment resolves a circuit conflict regarding the 
scope of the enhancement in subsection (b)(4)(A) of Sec. 2F1.1 (Fraud 
and Deceit) for misrepresentation that the defendant was acting on 
behalf of a charitable, educational, religious, or political 
organization, or a government agency. Specifically, the conflict 
concerns whether the misrepresentation applies only in cases in which 
the defendant does not have any authority to act on behalf of the 
covered organization or government agency or if it applies more broadly 
(i.e., to cases in which the defendant, who has a legitimate connection 
to the covered organization or government agency, misrepresents that 
the defendant was acting solely on behalf of the organization or 
agency). Compare e.g., United States v. Marcum 16 F.3d 599 (4th Cir. 
1994) (enhancement appropriate even though defendant did not 
misrepresent his authority to act on behalf of the organization but 
rather only misrepresented that he was conducting an activity wholly on 
behalf of the organization), with United States v. Frazier, 5 F.3d 1105 
(10th Cir. 1995) (application of the enhancement is limited to cases in 
which the defendant exploits his victim by claiming to have authority 
which in fact does not exist).
    The proposed amendment provides for application of the enhancement 
if (A) the defendant falsely represented that the defendant was an 
employee of a covered organization or a government agency; or (B) the 
defendant was an employee of a covered organization or a government 
agency who represented that the defendant was acting solely for the 
benefit of the organization or agency when, in fact, the defendant 
intended to divert all or part of that benefit (for example, for the 
defendant's personal gain). Under either scenario, it is the 
representation that enables the defendant to commit the offense. To 
avoid double counting in the case of an employee described in clause 
(B) who also holds a position of trust, the proposed amendment provides 
an application note instructing the court not to apply Sec. 3B1.3 
(Abuse of Position of Trust or Use of Special Skill) if the same 
conduct forms the basis both for the enhancement in Sec. 2F1.1(b)(4)(A) 
and the adjustment in Sec. 3B1.3.
    The proposed amendment also addresses the issue of the embezzler 
who works for a covered organization or government agency. The proposed 
amendment provides that embezzlement of funds by an employee of a 
covered organization or government agency, without more, is not 
sufficient to trigger application of the enhancement. However, such an 
employee who also holds a position of trust may be subject to an 
adjustment pursuant to Sec. 3B1.3.

Proposed Amendment

    The Commentary to Sec. 2F1.1 captioned ``Application Notes'' is 
amended by striking Note 5 in its entirety and inserting the following:
    5. Misrepresentation.--Subsection (b)(4)(A) applies in any case in 
which (A) the defendant represented that the defendant was an employee 
or authorized agent of a charitable, educational, religious, or 
political organization, or government agency when, in fact, the 
defendant was not such an employee or agent; or (B) the defendant was 
an employee or agent of the organization or agency and represented that 
the defendant was acting solely to obtain a benefit for the 
organization or agency, when in fact, the defendant intended to divert 
all or part of that benefit (e.g., for the defendant's personal gain). 
Subsection (b)(4)(A) would apply, for example, to the following:
    (A) A defendant who solicits contributions for a non-existent 
famine relief organization.
    (B) A defendant who solicits donations from church members by 
falsely claiming to be a fund raiser for a religiously affiliated 
school.
    (C) A defendant, chief of a local fire department, who conducts a 
public fund raiser representing that the purpose of the fund raiser is 
to procure sufficient funds for a new fire engine when, in fact, the 
defendant diverts some of the funds for the defendant's personal 
benefit.
    If the conduct that forms the basis for an enhancement under 
subsection (b)(4)(A) is the only conduct that forms the basis for an 
adjustment under Sec. 3B1.3 (Abuse of Position of Trust or Use of 
Special Skill), do not apply an adjustment under Sec. 3B1.3.
    The embezzlement of funds alone is not sufficient to warrant 
application of subsection (b)(4)(A). The embezzled funds must have been 
solicited pursuant to a misrepresentation that the defendant was acting 
to obtain a benefit for the organization or agency. However, if a 
defendant who embezzles funds

[[Page 66798]]

holds a position of public or private trust, Sec. 3B1.3 (Abuse of 
Position of Trust or Use of Special Skill) may apply.''.

Proposed Amendment: Circuit Conflict Concerning Certain Drug 
Defendants and Mitigating Role

7. Synopsis of Proposed Amendment

    This amendment proposes to resolve a circuit conflict regarding 
whether application of Sec. 3B1.2 (Mitigating Role) is precluded (i.e., 
without the necessity of applying the guideline to the facts) in the 
case of a single defendant drug courier if the defendant's base offense 
level is determined solely by the quantity personally handled by the 
defendant and that quantity constitutes all of the defendant's relevant 
conduct. Compare e.g., United States v. Isaza-Zapata, 148 F.3d 236, 241 
(3d. Cir. 1998) (defendant who pleaded guilty to importing heroin was 
sentenced based on amounts in his personal possession, but if he can 
meet the requirements of Sec. 3B1.2 he is entitled to the reduction 
upon appropriate proof) with United States v. Isienyi, 207 F.3d 390 
(7th Cir. 2000) (defendant pleaded guilty to one count of importing a 
specified quantity of heroin; held defendant ineligible for a 
mitigating role adjustment when his offense level consisted only of 
amounts he personally handled).
    The proposed amendment adopts the view that such a defendant, in a 
single defendant case, is not precluded from receiving a mitigating 
role adjustment.
    In addition to resolving the circuit conflict, the proposed 
amendment (A) incorporates commentary from the Introduction to Chapter 
Three, Part B (Role in the Offense) that there must be more than one 
participant before application of a mitigating role adjustment may be 
considered; (B) incorporates the definition of ``participant'' found in 
the aggravating role guideline; (C) amends commentary to indicate that 
the mitigating role adjustment ordinarily is not warranted if the 
defendant receives a lower offense level than warranted by the actual 
criminal conduct because, for example, the defendant was convicted of a 
less serious offense or otherwise was held accountable under a plea for 
a lesser quantity of drugs than warranted by the defendant's actual 
conduct; (D) deletes commentary language that the minimal role 
adjustment is intended to be used infrequently; and (E) makes technical 
amendments to the guideline (such as the addition of headings for, and 
the reordering of, application notes in the commentary) that are 
intended to have no substantive impact on the guideline.

Proposed Amendment

    The Commentary to Sec. 3B1.2 captioned ``Application Notes'' is 
amended in Note 1 by inserting ``Minimal Participant.--'' before 
``Subsection (a)''; and by inserting ``described in Application Note 
3(A)'' before ``who plays''.
    The Commentary to Sec. 3B1.2 captioned ``Application Notes'' is 
amended in Note 3 by striking ``For purposes of Sec. 3B1.2(b), a minor 
participant means any participant'' and inserting ``Minor 
Participant.--Subsection (b) applies to a defendant described in 
Application Note 3(A)''.
    The Commentary to Sec. 3B1.2 is amended by striking Notes 2 and 4 
in their entirety; by redesignating Notes 1 and 3 as Notes 4 and 5, 
respectively; and by inserting before redesignated Note 4 (formerly 
Note 1) the following:
    ``1. Definition.--For purposes of this guideline, `participant' has 
the meaning given that term in Application Note 1 of Sec. 3B1.1 
(Aggravating Role).
    2. Requirement of Multiple Participants.--This guideline is not 
applicable unless more than one participant was involved in the 
offense. See the Introductory Commentary to this Part (Role in the 
Offense). Accordingly, an adjustment under this guideline may not apply 
to a defendant who is the only defendant convicted of an offense unless 
that offense involved other participants in addition to the defendant 
and the defendant otherwise qualifies for such an adjustment.
    3. Applicability of Adjustment.--
    (A) Substantially Less Culpable than Average Participant.--This 
section provides a range of adjustments for a defendant who plays a 
part in committing the offense that makes him substantially less 
culpable than the average participant.
    However, a reduction for a mitigating role under this section 
ordinarily is not warranted in the case of a defendant who has received 
an offense level lower than the offense level warranted by the 
defendant's actual criminal conduct (because, for example, the 
defendant was convicted of a less serious offense or was held 
accountable for a quantity of drugs less than what the defendant 
otherwise would have been accountable under Sec. 1B1.3 (Relevant 
Conduct)). In such a case, the defendant is not substantially less 
culpable than a defendant whose only conduct involved the less serious 
offense. For example, if a defendant whose actual conduct involved a 
minimal role in the distribution of 25 grams of cocaine (an offense 
having a Chapter Two offense level of level 14 under Sec. 2D1.1) is 
convicted of simple possession of cocaine (an offense having a Chapter 
Two offense level of level 6 under Sec. 2D2.1), no reduction for a 
mitigating role is warranted because the defendant is not substantially 
less culpable than a defendant whose only conduct involved the simple 
possession of cocaine.
    (B) Fact-Based Determination.--The determination whether to apply 
subsection (a) or subsection (b), or an intermediate adjustment, 
involves a determination that is heavily dependent upon the facts of 
the particular case. As with any other factual issue, the court, in 
weighing the totality of the circumstances, is not required to find, 
based solely on the defendant's bare assertion, that such a role 
adjustment is warranted.
    (C) Applicability to Certain Defendants.--A defendant who is 
convicted of a drug trafficking offense, whose role in that offense was 
limited to transporting or storing drugs and who, based on the 
defendant's criminal conduct, is accountable under Sec. 1B1.3 (Relevant 
Conduct) only for the quantity of drugs the defendant personally 
transported or stored is not precluded from receiving an adjustment 
under this guideline.''.
    The Commentary to Sec. 3B1.2 is amended by striking the background 
in its entirety.
    Issues for Comment: The Commission invites comment on the 
following:
    (1) With respect to a defendant whose role in a drug offense is 
limited to transporting or storing drugs, should the Commission, as an 
alternative to the proposed amendment, preclude such a defendant from 
receiving any mitigating role adjustment under Sec. 3B1.2? 
Alternatively, should the Commission provide that such a defendant may 
qualify only for a minor role adjustment, but not a minimal role 
adjustment?
    (2) Should the example in proposed Application Note 3(C) (i.e., 
that a defendant whose role in a drug trafficking offense is limited to 
transporting or storing drugs and who is accountable under Sec. 1B1.3 
(Relevant Conduct) only for the quantity of drugs the defendant 
personally transported or stored is not precluded from receiving a 
mitigating role adjustment) be broadened to make clear that the rule is 
intended to cover defendants convicted of offenses other than drug 
trafficking offenses who have a similarly limited role in the offense? 
Specifically, should the example be expanded to make clear that the 
rule is intended to apply to a defendant who has a similarly limited 
role in any offense and who is accountable under Sec. 1B1.3 only for 
that

[[Page 66799]]

portion of the offense for which the defendant was personally involved?

[FR Doc. 00-28564 Filed 11-6-00; 8:45 am]
BILLING CODE 2210-40-P