[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
