Sentencing Guidelines for United States Courts, 24852-24856 [05-9378]

Download as PDF 24852 Federal Register / Vol. 70, No. 90 / Wednesday, May 11, 2005 / Notices or otherwise in furtherance of the purposes of the Act.15 IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission’s Internet comment form (http://www.sec.gov/ rules/sro.shtml); or • Send an e-mail to rulecomments@sec.gov. Please include File Number SR–Phlx–2005–22 on the subject line. Paper Comments • Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549–0609. All submissions should refer to File Number SR–Phlx–2005–22. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission’s Internet Web site (http://www.sec.gov/ rules/sro.shtml). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission’s Public Reference Room. Copies of the filing also will be available for inspection and copying at the principal office of the Phlx. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR–Phlx–2005–22 and should be submitted on or before June 1, 2005. 15 See 15 U.S.C. 78s(b)(3)(C). For purposes of calculation the 60-day abrogation period, the Commission considers the period to commence on May 4, 2005, the date the Phlx filed Amendment No. 2. VerDate jul<14>2003 16:48 May 10, 2005 Jkt 205001 For the Commission, by the Division of Market Regulation, pursuant to delegated authority.16 Margaret H. McFarland, Deputy Secretary. [FR Doc. E5–2306 Filed 5–10–05; 8:45 am] the proposed amendments in Washington, DC, on April 12, 2005. On April 29, 2005, the Commission submitted these amendments to Congress and specified an effective date of November 1, 2005. BILLING CODE 8010–01–P Authority: 28 U.S.C. 994(a), (o), and (p); USSC Rule of Practice and Procedure 4.1. UNITED STATES SENTENCING COMMISSION Sentencing Guidelines for United States Courts United States Sentencing Commission. ACTION: Notice of submission to Congress of amendments to the sentencing guidelines effective November 1, 2005. AGENCY: SUMMARY: Pursuant to its authority under 28 U.S.C. 994(p), the Commission has promulgated amendments to the sentencing guidelines, policy statements, commentary, and statutory index. This notice sets forth the amendments and the reason for each amendment. DATES: The Commission has specified an effective date of November 1, 2005, for the amendments set forth in this notice. FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Affairs Officer, 202–502–4590. The amendments set forth in this notice also may be accessed through the Commission’s Web site at http:// www.ussc.gov. 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 generally submits guideline amendments to Congress pursuant to 28 U.S.C. 994(p) not later than the first day of May each year. Absent action of Congress to the contrary, submitted amendments become effective by operation of law on the date specified by the Commission (generally November 1 of the year in which the amendments are submitted to Congress). Notice of proposed amendments was published in the Federal Register on February 23, 2005 (see 70 FR 8868). The Commission held a public hearing on PO 00000 16 17 CFR 200.30–3(a)(12). Frm 00088 Fmt 4703 Sfmt 4703 Ricardo H. Hinojosa, Chair. 1. Amendment: Chapter Two, Part B, Subpart 1 is amended by adding at the end the following new guideline and accompanying commentary: ‘‘§ 2B1.6. Aggravated Identity Theft (a) If the defendant was convicted of violating 18 U.S.C. 1028A, the guideline sentence is the term of imprisonment required by statute. Chapters Three (Adjustments) and Four (Criminal History and Criminal Livelihood) shall not apply to that count of conviction. Commentary Statutory Provision: 18 U.S.C. 1028A. For additional statutory provision(s), see Appendix A (Statutory Index). Application Notes 1. Imposition of Sentence.— (A) In General.—Section 1028A of title 18, United States Code, provides a mandatory term of imprisonment. Accordingly, the guideline sentence for a defendant convicted under 18 U.S.C. 1028A is the term required by that statute. Except as provided in subdivision (B), 18 U.S.C. 1028A also requires a term of imprisonment imposed under this section to run consecutively to any other term of imprisonment. (B) Multiple Convictions Under Section 1028A.—Section 1028A(b)(4) of title 18, United States Code, provides that in the case of multiple convictions under 18 U.S.C. 1028A, the terms of imprisonment imposed on such counts may, in the discretion of the court, run concurrently, in whole or in part, with each other. See the Commentary to § 5G1.2 (Sentencing on Multiple Counts of Conviction) for guidance regarding imposition of sentence on multiple counts of 18 U.S.C. 1028A. 2. Inapplicability of Chapter Two Enhancement.—If a sentence under this guideline is imposed in conjunction with a sentence for an underlying offense, do not apply any specific offense characteristic for the transfer, possession, or use of a means of identification when determining the sentence for the underlying offense. A sentence under this guideline accounts for this factor for the underlying offense of conviction, including any such E:\FR\FM\11MYN1.SGM 11MYN1 Federal Register / Vol. 70, No. 90 / Wednesday, May 11, 2005 / Notices enhancement that would apply based on conduct for which the defendant is accountable under § 1B1.3 (Relevant Conduct). ‘Means of identification’ has the meaning given that term in 18 U.S.C. 1028(d)(7). 3. Inapplicability of Chapters Three and Four.—Do not apply Chapters Three (Adjustments) and Four (Criminal History and Criminal Livelihood) to any offense sentenced under this guideline. Such offenses are excluded from application of those chapters because the guideline sentence for each offense is determined only by the relevant statute. See §§ 3D1.1 (Procedure for Determining Offense Level on Multiple Counts) and 5G1.2.’’. The Commentary to § 3B1.3 captioned ‘‘Application Notes’’ is amended in Note 1 by inserting ‘‘Definition of ‘Public or Private Trust’.—’’ before ‘‘ ‘Public or private trust’ refers to’’, and by striking the second paragraph; by redesignating Notes 2 through 4 as Notes 3 through 5, respectively; and by inserting after Note 1 the following: ‘‘2. Application of Adjustment in Certain Circumstances.— Notwithstanding Application Note 1, or any other provision of this guideline, an adjustment under this guideline shall apply to the following: (A) An employee of the United States Postal Service who engages in the theft or destruction of undelivered United States mail. (B) A defendant who exceeds or abuses the authority of his or her position in order to obtain unlawfully, or use without authority, any means of identification. ‘Means of identification’ has the meaning given that term in 18 U.S.C. 1028(d)(7). The following are examples to which this subdivision would apply: (i) An employee of a state motor vehicle department who exceeds or abuses the authority of his or her position by knowingly issuing a driver’s license based on false, incomplete, or misleading information; (ii) a hospital orderly who exceeds or abuses the authority of his or her position by obtaining or misusing patient identification information from a patient chart; and (iii) a volunteer at a charitable organization who exceeds or abuses the authority of his or her position by obtaining or misusing identification information from a donor’s file.’’. Section 3D1.1 is amended by striking subsection (b) and inserting the following: ‘‘(b) Exclude from the application of §§ 3D1.2–3D1.5 the following: (1) Any count for which the statute (A) specifies a term of imprisonment to be imposed; and (B) requires that such VerDate jul<14>2003 16:48 May 10, 2005 Jkt 205001 term of imprisonment be imposed to run consecutively to any other term of imprisonment. Sentences for such counts are governed by the provisions of § 5G1.2(a). (2) Any count of conviction under 18 U.S.C. 1028A. See Application Note 2(B) of the Commentary to § 5G1.2 (Sentencing on Multiple Counts of Conviction) for guidance on how sentences for multiple counts of conviction under 18 U.S.C. 1028A should be imposed.’’. The Commentary to § 5G1.2 captioned ‘‘Application Notes’’ is amended in Note 2 by inserting ‘‘(A) In General.’’— before ‘‘Subsection (a) applies’’; by inserting ‘‘and 18 U.S.C. 1028A (requiring a mandatory term of imprisonment of either two or five years, based on the conduct involved, and also requiring, except in the circumstances described in subdivision (B), the sentence imposed to run consecutively to any other term of imprisonment)’’ after ‘‘imprisonment)’’; by striking ‘‘Note, however,’’ and all that follows through ‘‘§ 3624(e).’’; and by adding at the end the following: ‘‘(B) Multiple Convictions Under 18 U.S.C. 1028A.—Section 1028A of title 18, United States Code, generally requires that the mandatory term of imprisonment for a violation of such section be imposed consecutively to any other term of imprisonment. However, 18 U.S.C. 1028A(b)(4) permits the court, in its discretion, to impose the mandatory term of imprisonment on a defendant for a violation of such section ‘‘concurrently, in whole or in part, only with another term of imprisonment that is imposed by the court at the same time on that person for an additional violation of this section, provided that such discretion shall be exercised in accordance with any applicable guidelines and policy statements issued by the Sentencing Commission * * *’’. In determining whether multiple counts of 18 U.S.C. 1028A should run concurrently with, or consecutively to, each other, the court should consider the following non-exhaustive list of factors: (i) The nature and seriousness of the underlying offenses. For example, the court should consider the appropriateness of imposing consecutive, or partially consecutive, terms of imprisonment for multiple counts of 18 U.S.C. 1028A in a case in which an underlying offense for one of the 18 U.S.C. 1028A offenses is a crime of violence or an offense enumerated in 18 U.S.C. 2332b(g)(5)(B). (ii) Whether the underlying offenses are groupable under § 3D1.2 (Multiple Counts). Generally, multiple counts of PO 00000 Frm 00089 Fmt 4703 Sfmt 4703 24853 18 U.S.C. 1028A should run concurrently with one another in cases in which the underlying offenses are groupable under § 3D1.2. (iii) Whether the purposes of sentencing set forth in 18 U.S.C. 3553(a)(2) are better achieved by imposing a concurrent or a consecutive sentence for multiple counts of 18 U.S.C. 1028A. (C) Imposition of Supervised Release.—In the case of a consecutive term of imprisonment imposed under subsection (a), any term of supervised release imposed is to run concurrently with any other term of supervised release imposed. See 18 U.S.C. 3624(e).’’. Appendix A (Statutory Index) is amended by inserting after the line referenced to 18 U.S.C. 1028 the following: ‘‘18 U.S.C. 1028A 2B1.6’’. Reason for Amendment: This amendment implements sections 2 and 5 of the Identity Theft Penalty Enhancement Act, Public Law 108–275, 118 Stat. 831 (‘‘the Act’’), which create two new criminal offenses at 18 U.S.C. 1028A and direct the Sentencing Commission to expand the upward adjustment at § 3B1.3 (Abuse of Position of Trust/Special Skill). This amendment also provides guidance to the courts on imposing sentences for multiple violations of section 1028A. The Act creates a new offense at 18 U.S.C. 1028A(a)(1) that prohibits the unauthorized transfer, use, or possession of a means of identification of another person during, or in relation to, specific enumerated felonies. These felonies consist of various types of fraud, including mail and wire fraud in connection with passports, visas and other immigration, nationality, and citizenship laws, programs under the Social Security Act, and the acquisition of firearms. A conviction under section 1028A(a)(1) carries a two-year mandatory term of imprisonment that must run consecutively to any other term of imprisonment, including the sentence for the underlying felony conviction. The Act also creates a new offense at 18 U.S.C. 1028A(b)(1) that prohibits the unauthorized transfer, use, or possession of a means of identification of another person during, or in relation to, specific felonies enumerated in 18 U.S.C. 2332b(g)(5)(B) (‘‘federal crimes of terrorism’’). Section 1028A(b)(1) provides a five-year mandatory term of imprisonment that must run consecutively to any other term of imprisonment, including the sentence for the underlying felony conviction. As described below, section E:\FR\FM\11MYN1.SGM 11MYN1 24854 Federal Register / Vol. 70, No. 90 / Wednesday, May 11, 2005 / Notices 1028A(b)(4) creates an exception to the requirement for consecutive terms of imprisonment in cases involving multiple violations of the statute sentenced at the same time. First, in response to the creation of these new criminal offenses, the amendment creates a new guideline at § 2B1.6 (Aggravated Identity Theft). This guideline is patterned after § 2K2.4 (Use of a Firearm, Armor-Piercing Ammunition, or Explosive During or in Relation to a Certain Crimes). Because the new offenses carry a fixed, mandatory consecutive term of imprisonment, the new guideline, as does § 2K2.4, provides that the guideline sentence is the term of imprisonment required by statute. To avoid unwarranted double-counting, the amendment contains an application note that prohibits the application of any specific offense characteristic for the transfer, possession, or use of a means of identification when determining the sentence for the underlying offense in cases in which a sentence under § 2B1.6 is imposed in conjunction with a sentence for an underlying offense. Also, consistent with § 2K2.4, the new guideline at § 2B1.6 contains an application note that provides that adjustments under Chapters Three and Four are inapplicable to sentences under this guideline. Second, in response to the directive in section 5 to amend § 3B1.3 (Abuse of Trust or Use of Special Skill) to include a ‘‘defendant [who] exceeds or abuses the authority of his or her position in order to obtain unlawfully or use without authority any means of identification,’’ the Commission created Application Note 2 to § 3B1.3 to include such defendants within the scope of the guideline. The application note contains several examples to illustrate the types of conduct intended to be within the scope of the new provision. Third, the amendment adds a number of provisions at appropriate guidelines in order to provide guidance to courts in accordance with section 2 of the Act (18 U.S.C. 1028A(b)(4)). That section states that ‘‘a term of imprisonment imposed on a person for violation of this section may, in the discretion of the court, run concurrently, in whole or in part, only with another term of imprisonment that is imposed by the court at the same time on that person for an additional violation of this section, provided that such discretion shall be exercised in accordance with any applicable guidelines and policy statements issued by the Sentencing Commission * * *.’’ The amendment states a general rule, at § 5G1.2 VerDate jul<14>2003 16:48 May 10, 2005 Jkt 205001 (Sentencing on Multiple Counts of Conviction), Application Note 2(B), providing that the court has discretion to impose concurrent or consecutive, or partially concurrent and partially consecutive, terms of imprisonment for multiple violations of 18 U.S.C. 1028A. A non-exhaustive list of factors for courts to consider in making this determination is provided, including the nature and seriousness of the underlying offenses and whether the offenses would be groupable under § 3D1.2 (Multiple Counts). Finally, the amendment modifies § 3D1.1 (Procedure for Determining Offense Level on Multiple Counts) to make clear that section 1028A offenses are excluded from the general grouping rules in §§ 3D1.2–3D1.5 and makes conforming additions and changes to the new guideline at § 2B1.6 (Aggravated Identity Theft) in Application Note 1 and § 3D1.1(b)(1) and (2). 2. Amendment: Section 2R1.1(a) is amended by striking ‘‘10’’ and inserting ‘‘12’’. Section 2R1.1(b) is amended by striking subdivision (2) and inserting the following: ‘‘(2) If the volume of commerce attributable to the defendant was more than $1,000,000, adjust the offense level as follows: Volume of commerce (apply the greatest) Adjustment to offense level (A) More than $1,000,000 ..... (B) More than $10,000,000 ... (C) More than $40,000,000 .. (D) More than $100,000,000 (E) More than $250,000,000 (F) More than $500,000,000 (G) More than $1,000,000,000. (H) More than $1,500,000,000. add add add add add add add 2. 4. 6. 8. 10. 12. 14. add 16. For purposes of this guideline, the volume of commerce attributable to an individual participant in a conspiracy is the volume of commerce done by him or his principal in goods or services that were affected by the violation. When multiple counts or conspiracies are involved, the volume of commerce should be treated cumulatively to determine a single, combined offense level.’’. The Commentary to § 2R1.1 captioned ‘‘Application Notes’’ is amended by striking Note 1 and inserting the following: ‘‘1. Application of Chapter Three (Adjustments).—Sections 3B1.1 (Aggravating Role), 3B1.2 (Mitigating Role), 3B1.3 (Abuse of Position of Trust or Use of Special Skill), and 3C1.1 PO 00000 Frm 00090 Fmt 4703 Sfmt 4703 (Obstructing or Impeding the Administration of Justice) may be relevant in determining the seriousness of the defendant’s offense. For example, if a sales manager organizes or leads the price-fixing activity of five or more participants, the 4-level increase at § 3B1.1(a) should be applied to reflect the defendant’s aggravated role in the offense. For purposes of applying § 3B1.2, an individual defendant should be considered for a mitigating role adjustment only if he were responsible in some minor way for his firm’s participation in the conspiracy.’’. The Commentary to § 2R1.1 captioned ‘‘Application Notes’’ is amended in Note 2 by striking the first sentence and inserting the following: ‘‘Considerations in Setting Fine for Individuals.—In setting the fine for individuals, the court should consider the extent of the defendant’s participation in the offense, the defendant’s role, and the degree to which the defendant personally profited from the offense (including salary, bonuses, and career enhancement).’’. The Commentary to § 2R1.1 captioned ‘‘Background’’ is amended in the second paragraph by striking the ‘‘The Commission’’ and all that follows through ‘‘general deterrence.’’; in the third paragraph by striking ‘‘confinement of six months or longer’’ and inserting ‘‘some period of confinement’’; and in the last paragraph by striking the last sentence. Reason for Amendment: This amendment responds to the Antitrust Criminal Penalty Enhancement and Reform Act of 2004, Pub. L. 108–237 (the ‘‘Act’’). The Act increased the statutory maximum term of imprisonment for antitrust offenses under 15 U.S.C. 1 and 3(b) from three to ten years. The amendment responds to congressional concern about the seriousness of antitrust offenses and provides for antitrust penalties that are more proportionate to those for sophisticated frauds sentenced under § 2B1.1 (Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving Stolen Property; Property Damage or Destruction; Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States). The Commission has long recognized the similarity of antitrust offenses to sophisticated frauds. The amendment increases the base offense level for antitrust offenses in § 2R1.1 (Bid-Rigging, Price-Fixing or Market-Allocation Agreements Among Competitors) to level 12. The higher base offense level ensures that penalties E:\FR\FM\11MYN1.SGM 11MYN1 Federal Register / Vol. 70, No. 90 / Wednesday, May 11, 2005 / Notices for antitrust offenses will be coextensive with those for sophisticated frauds sentenced under § 2B1.1 and recognizes congressional concern about the inherent seriousness of antitrust offenses. The penalties for sophisticated fraud have been increased incrementally due to a series of amendments to § 2B1.1, while no commensurate increases for antitrust offenses had occurred. Raising the base offense level of § 2R1.1 helps restore the historic proportionality in the treatment of antitrust offenses and sophisticated frauds. The ‘‘volume of commerce’’ table at § 2R1.1(b)(2) is amended to provide up to 16 additional offense levels for the defendant whose offense involves more than $1,500,000,000, while the new table’s first threshold is raised from $400,000 to $1,000,000. The new volume of commerce table: (1) Recognizes the depreciation in the value of the dollar since the table was last revised in 1991; (2) responds to data indicating that the financial magnitude of antitrust offenses has increased significantly; and (3) provides greater deterrence of large scale price-fixing crimes. Application Note 1 to § 2R1.1 is amended to emphasize the potential relevance of such Chapter Three enhancements as § 3B1.1 (Aggravating Role), § 3B1.3 (Abuse of Position of Trust or Use of Special Skill), and § 3C1.1 (Obstructing or Impeding the Administration of Justice) in determining the appropriate sentence for an antitrust offender. Application Note 2 also is amended to highlight the potential relevance of the defendant’s role in the offense in determining the amount of fine to be imposed. Finally, the amendment strikes outdated background commentary. 3. Amendment: Section 2A2.4 is amended by striking the Commentary captioned ‘‘Background’’. The Commentary to § 2B1.1 captioned ‘‘Application Notes’’ is amended in Note 15 in the first sentence by inserting ‘‘involving fraudulent conduct that is’’ after ‘‘establishes an offense’’; and in the second sentence by inserting ‘‘involves fraudulent conduct that’’ after ‘‘the offense’’. Section 2B3.3(c)(1) is amended by inserting ‘‘; Fraud Involving the Deprivation of the Intangible Right to Honest Services of Public Officials; Conspiracy to Defraud by Interference with Governmental Functions’’ after ‘‘Official Right’’. Section 2C1.3(c)(1) is amended by inserting ‘‘; Fraud Involving the Deprivation of the Intangible Right to Honest Services of Public Officials; VerDate jul<14>2003 16:48 May 10, 2005 Jkt 205001 Conspiracy to Defraud by Interference with Governmental Functions’’ after ‘‘Official Right’’. Section 2C1.8(c)(1) is amended by inserting ‘‘; Fraud Involving the Deprivation of the Intangible Right to Honest Services of Public Officials; Conspiracy to Defraud by Interference with Governmental Functions’’ after ‘‘Official Right’’. The Commentary to § 2D1.1 captioned ‘‘Application Notes’’ is amended in Note 5 in the first paragraph by striking ‘‘whether a greater quantity of the analogue is needed to produce a substantially similar effect on the central nervous system as’’ and inserting ‘‘whether the same quantity of analogue produces a greater effect on the central nervous system than’’. The Commentary to § 2D1.1 captioned ‘‘Application Notes’’ is amended in Note 19 by striking ‘‘(b)(5)(A)’’ each place it appears and inserting ‘‘(b)(6)(A)’’; in Note 20 by striking ‘‘(b)(5)(B) or (C)’’ and inserting ‘‘(b)(6)(B) or (C)’’; and by striking ‘‘(b)(5)(C)’’ and inserting ‘‘(b)(6)(C)’’; and in Note 21 by striking ‘‘(b)(6)’’ each place it appears and inserting ‘‘(b)(7)’’. The Commentary to § 2D1.1 captioned ‘‘Background’’ is amended in the ninth paragraph by striking ‘‘(b)(5)(A)’’ and inserting ‘‘(b)(6)(A)’’; in the last paragraph and by striking ‘‘(b)(5)(B) and (C)’’ and inserting ‘‘(b)(6)(B) and (C)’’. Section 2D1.11(e) is amended in subdivision (1) by striking ‘‘2271 L or more of Gamma-butyrolactone;’’ and inserting ‘‘1135.5 L or more of Gammabutyrolactone;’’; in subdivision (2) by striking ‘‘At least 681.3 L but less than 2271 L of Gammabutyrolactone;’’ and inserting ‘‘At least 340.7 L but less than 1135.5 L of Gamma-butyrolactone;’’; in subdivision (3) by striking ‘‘At least 227.1 L but less than 681.3 L of Gammabutyrolactone;’’ and inserting ‘‘At least 113.6 L but less than 340.7 L of Gammabutyrolactone;’’; in subdivision (4) by striking ‘‘At least 159 L but less than 227.1 L of Gammabutyrolactone;’’ and inserting ‘‘At least 79.5 L but less than 113.6 L of Gammabutyrolactone;’’; in subdivision (5) by striking ‘‘At least 90.8 L but less than 159 L of Gammabutyrolactone;’’ and inserting ‘‘At least 45.4 L but less than 79.5 L of Gammabutyrolactone;’’; in subdivision (6) by striking ‘‘At least 22.7 L but less than 90.8 L of Gammabutyrolactone;’’ and inserting ‘‘At least 11.4 L but less than 45.4 L of Gammabutyrolactone;’’; in subdivision (7) by striking ‘‘At least 18.2 L but less than 22.7 L of Gammabutyrolactone;’’ and inserting ‘‘At least PO 00000 Frm 00091 Fmt 4703 Sfmt 4703 24855 9.1 L but less than 11.4 L of Gammabutyrolactone;’’; in subdivision (8) by striking ‘‘At least 13.6 L but less than 18.2 L of Gammabutyrolactone;’’ and inserting ‘‘At least 6.8 L but less than 9.1 L of Gammabutyrolactone;’’; in subdivision (9) by striking ‘‘At least 9.1 L but less than 13.6 L of Gammabutyrolactone;’’ and inserting ‘‘At least 4.5 L but less than 6.8 L of Gammabutyrolactone;’’; and in subdivision (10) by striking ‘‘Less than 9.1 L of Gammabutyrolactone;’’ and inserting ‘‘Less than 4.5 L of Gamma-butyrolactone;’’. The Commentary to § 2K2.1 captioned ‘‘Statutory Provisions’’ is amended by striking ‘‘(e)–(i), (k)–(o)’’ and inserting ‘‘(e)–(h), (j)–(n)’’. Section 2M6.1 is amended by striking ‘‘(a)(4)*’’ in subsection (b)(1)(A) and inserting ‘‘(a)(4)(A)’’; and by striking ‘‘*Note: The reference to ‘‘(a)(4)’’ should be to ‘‘(a)(4)(A)’.’’. Section 3D1.2(d) is amended by striking ‘‘2C1.7,’’. The Commentary to § 5D1.2 captioned ‘‘Application Notes’’ is amended in Note 2 by inserting ‘‘Limitation on’’ before ‘‘Applicability of Statutory’’. Section 8C2.1(a) is amended by striking ‘‘, 2C1.7’’. Appendix A (Statutory Index) is amended by striking the following: ‘‘18 U.S.C. 924(i) 2K2.1 18 U.S.C. 924(j)(1) 2A1.1, 2A1.2 18 U.S.C. 924(j)(2) 2A1.3, 2A1.4 18 U.S.C. 924(k)–(o) 2K2.1’’, and inserting the following: ‘‘18 U.S.C. 924(i)(1) 2A1.1, 2A1.2 18 U.S.C. 924(i)(2) 2A1.3, 2A1.4 18 U.S.C. 924(j)–(n) 2K2.1’’. Reason for Amendment: This ten-part amendment consists of technical and conforming amendments to various guidelines. First, this amendment deletes unnecessary background commentary in § 2A2.4 (Obstructing or Impeding Officers). Second, this amendment makes minor clarifying amendments to Application Note 15 in the fraud guideline, § 2B1.1, to make clear that, in order for the cross reference at § 2B1.1(c)(3) to apply, the conduct set forth in the count of conviction must establish a fraud or false statement-type offense. Third, this amendment makes technical amendments to several guidelines to conform to changes made in the public corruption guidelines in the 2004 amendment cycle (see Appendix C to the Guidelines Manual, Amendment 666). Specifically, the proposed amendment corrects title references to § 2C1.1 in §§ 2B3.3(c)(1), E:\FR\FM\11MYN1.SGM 11MYN1 24856 Federal Register / Vol. 70, No. 90 / Wednesday, May 11, 2005 / Notices 2C1.3(c)(1), and 2C1.8(c)(1) and strikes references to § 2C1.7 in §§ 3D1.2(d) and 8C2.1. Fourth, this amendment clarifies Application Note 5 in the drug guideline, § 2D1.1, regarding drug analogues. The current note suggests that drug analogues are less potent than the drug for which it is an analogue. However, by statute, analogues can only be the same or more potent. Fifth, this amendment redesignates incorrect references in a number of Application Notes in the drug guideline, § 2D1.1. Sixth, this amendment conforms § 2D1.11 (Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt or Conspiracy) to changes made in the drug guideline, § 2D1.1, in the 2004 amendment cycle (see Appendix C to the Guidelines Manual, Amendment 667). Specifically, the proposed amendment amends the Chemical Quantity Table in § 2D1.11(e) so that the amount of gamma-butyrolactone (GBL), at any particular offense level, is the amount that provides a 100 percent yield of gamma-hydroxybutyric acid (GHB). Seventh, this amendment updates the statutory provisions in § 2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition) to account for redesignations of 18 U.S.C. 924 offenses. Eighth, this amendment corrects a typographical error in § 2M6.1 (Weapons of Mass Destruction). Ninth, this amendment corrects the title to § 5C1.2 (Limitation on Applicability of Statutory Minimum Sentence in Certain Cases) in Application Note 2 of § 5D1.2 (Terms of Supervised Release.). Tenth, this amendment corrects Appendix A (Statutory Index) to account for redesignations of 18 U.S.C. 924 offenses. [FR Doc. 05–9378 Filed 5–10–05; 8:45 am] BILLING CODE 2211–01–P SMALL BUSINESS ADMINISTRATION Disaster Declaration #10111 and #10112 [Pennsylvania Disaster Number PA–00001] U.S. Small Business Administration. ACTION: Amendment 1. AGENCY: SUMMARY: This is an amendment of the Presidential declaration of a major VerDate jul<14>2003 16:48 May 10, 2005 Jkt 205001 disaster for the State of Pennsylvania (FEMA–1587–DR), dated 4/14/2005. Incident: Flooding. Incident Period: 4/2/2005 through 4/23/2005. EFFECTIVE DATE: 4/23/2005. Physical Loan Application Deadline Date: 6/14/2005. EIDL Loan Application Deadline Date: 1/9/2006. ADDRESSES: Submit completed loan applications to U.S. Small Business Administration, Disaster Area Office 1, 360 Rainbow Blvd., South 3rd Floor, Niagara Falls, NY 14303. FOR FURTHER INFORMATION CONTACT: A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, Suite 6050, Washington, DC 20416. SUPPLEMENTARY INFORMATION: The notice of the President’s major disaster declaration for Pennsylvania, dated 4/14/2005, is hereby amended to establish the incident period for this disaster as beginning 4/02/2005 and continuing through 4/23/2005. All other information in the original declaration remains unchanged. (Catalog of Federal Domestic Assistance Numbers 59002 and 59008.) Herbert L. Mitchell, Associate Administrator for Disaster Assistance. [FR Doc. 05–9377 Filed 5–10–05; 8:45 am] BILLING CODE 8025–01–P DEPARTMENT OF TRANSPORTATION Federal Transit Administration Environmental Impact Statement on Transit Improvements in the Northwest Corridor to Irving/DFW in Dallas, TX AGENCY: Federal Transit Administration, DOT. Notice of intent to prepare an Environmental Impact Statement (EIS). ACTION: SUMMARY: The Federal Transit Administration (FTA) and Dallas Area Rapid Transit (DART) issue this notice to advise interested agencies and the public of their intent to prepare an Environmental Impact Statement (EIS) on the proposed Northwest CorridorIrving/DFW Line Light Rail Transit (LRT) Project in Dallas and Irving, Texas. The EIS will be prepared in accordance with the National Environmental Policy Act (NEPA), as amended. The Northwest Corridor-Irving/DFW Line LRT project is the product of the Northwest Corridor Major Investment Study (MIS) completed by DART in PO 00000 Frm 00092 Fmt 4703 Sfmt 4703 early 2000. The MIS identified a Locally Preferred Investment Strategy (LPIS), which included a light rail element with two service lines, the Carrollton Line and the Irving/DFW Line. An EIS evaluating alternatives for the Carrollton Line has been completed, and FTA issued a Record of Decision on this portion of the LPIS on February 5, 2004. The identified primary travel need for the Northwest Corridor-Irving/DFW Line LRT is to serve the general northwest-southeast travel pattern along the Interstate Highway (IH) 35E/State Highway (SH) 114 corridor from downtown Dallas into North Irving. The LPIS alignment addressed this need with an alignment that generally parallels SH 114 through north Irving before terminating on the north side of SH 114, west of Beltline Road. After adoption of the LPIS, significant changes in land use and transportation patterns have occurred in the Irving/ DFW Corridor. Subsequent analyses by DART for the Irving/DFW Corridor have resulted in a refinement to the LPIS alignment. The refined alignment also addresses the primary travel need with an alignment that runs parallel but south of SH 114 through north Irving. Both of these ‘‘Build’’ alternatives will be fully evaluated in the EIS. DATES: Comment due date: Written comments on the scope of the EIS, including the alternatives and impacts to be considered, should be sent to John Hoppie, Project Manager by July 1, 2005. See ADDRESSES below. Scoping Meeting: A Public Scoping Meeting will be held June 29, 2005, at 6:30 p.m. at the University of Dallas— Haggar University Center, 1845 E. Northgate Drive, Irving, Texas. The meeting will be accessible to persons with disabilities. Individuals requiring special assistance to participate fully, such as a translator or sign-language interpreter, should notify DART in advance as indicated under ADDRESSES below. Interagency Coordination Meeting: DART will invite all federal, state and local agencies with a possible interest in any aspect of the proposed project or its impacts to an interagency coordination meeting and will provide scoping materials to these agencies prior to that meeting. The likely cooperating agencies include the Federal Aviation Administration, the Transportation Security Administration, and North Central Texas Council of Governments (NCTCOG). ADDRESSES: Written comments should be sent to John Hoppie, Project Manager, Dallas Area Rapid Transit, P.O Box 660163, Dallas, Texas 75266–7213. E:\FR\FM\11MYN1.SGM 11MYN1

Agencies

[Federal Register Volume 70, Number 90 (Wednesday, May 11, 2005)]
[Notices]
[Pages 24852-24856]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-9378]


=======================================================================
-----------------------------------------------------------------------

UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of submission to Congress of amendments to the 
sentencing guidelines effective November 1, 2005.

-----------------------------------------------------------------------

SUMMARY: Pursuant to its authority under 28 U.S.C. 994(p), the 
Commission has promulgated amendments to the sentencing guidelines, 
policy statements, commentary, and statutory index. This notice sets 
forth the amendments and the reason for each amendment.

DATES: The Commission has specified an effective date of November 1, 
2005, for the amendments set forth in this notice.

FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Affairs 
Officer, 202-502-4590. The amendments set forth in this notice also may 
be accessed through the Commission's Web site at http://www.ussc.gov.

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 generally 
submits guideline amendments to Congress pursuant to 28 U.S.C. 994(p) 
not later than the first day of May each year. Absent action of 
Congress to the contrary, submitted amendments become effective by 
operation of law on the date specified by the Commission (generally 
November 1 of the year in which the amendments are submitted to 
Congress).
    Notice of proposed amendments was published in the Federal Register 
on February 23, 2005 (see 70 FR 8868). The Commission held a public 
hearing on the proposed amendments in Washington, DC, on April 12, 
2005. On April 29, 2005, the Commission submitted these amendments to 
Congress and specified an effective date of November 1, 2005.

    Authority: 28 U.S.C. 994(a), (o), and (p); USSC Rule of Practice 
and Procedure 4.1.

Ricardo H. Hinojosa,
Chair.
    1. Amendment: Chapter Two, Part B, Subpart 1 is amended by adding 
at the end the following new guideline and accompanying commentary:
``Sec.  2B1.6. Aggravated Identity Theft
    (a) If the defendant was convicted of violating 18 U.S.C. 1028A, 
the guideline sentence is the term of imprisonment required by statute. 
Chapters Three (Adjustments) and Four (Criminal History and Criminal 
Livelihood) shall not apply to that count of conviction.
Commentary
    Statutory Provision: 18 U.S.C. 1028A. For additional statutory 
provision(s), see Appendix A (Statutory Index).
Application Notes
    1. Imposition of Sentence.--
    (A) In General.--Section 1028A of title 18, United States Code, 
provides a mandatory term of imprisonment. Accordingly, the guideline 
sentence for a defendant convicted under 18 U.S.C. 1028A is the term 
required by that statute. Except as provided in subdivision (B), 18 
U.S.C. 1028A also requires a term of imprisonment imposed under this 
section to run consecutively to any other term of imprisonment.
    (B) Multiple Convictions Under Section 1028A.--Section 1028A(b)(4) 
of title 18, United States Code, provides that in the case of multiple 
convictions under 18 U.S.C. 1028A, the terms of imprisonment imposed on 
such counts may, in the discretion of the court, run concurrently, in 
whole or in part, with each other. See the Commentary to Sec.  5G1.2 
(Sentencing on Multiple Counts of Conviction) for guidance regarding 
imposition of sentence on multiple counts of 18 U.S.C. 1028A.
    2. Inapplicability of Chapter Two Enhancement.--If a sentence under 
this guideline is imposed in conjunction with a sentence for an 
underlying offense, do not apply any specific offense characteristic 
for the transfer, possession, or use of a means of identification when 
determining the sentence for the underlying offense. A sentence under 
this guideline accounts for this factor for the underlying offense of 
conviction, including any such

[[Page 24853]]

enhancement that would apply based on conduct for which the defendant 
is accountable under Sec.  1B1.3 (Relevant Conduct). `Means of 
identification' has the meaning given that term in 18 U.S.C. 
1028(d)(7).
    3. Inapplicability of Chapters Three and Four.--Do not apply 
Chapters Three (Adjustments) and Four (Criminal History and Criminal 
Livelihood) to any offense sentenced under this guideline. Such 
offenses are excluded from application of those chapters because the 
guideline sentence for each offense is determined only by the relevant 
statute. See Sec. Sec.  3D1.1 (Procedure for Determining Offense Level 
on Multiple Counts) and 5G1.2.''.
    The Commentary to Sec.  3B1.3 captioned ``Application Notes'' is 
amended in Note 1 by inserting ``Definition of `Public or Private 
Trust'.--'' before `` `Public or private trust' refers to'', and by 
striking the second paragraph; by redesignating Notes 2 through 4 as 
Notes 3 through 5, respectively; and by inserting after Note 1 the 
following:
    ``2. Application of Adjustment in Certain Circumstances.--
Notwithstanding Application Note 1, or any other provision of this 
guideline, an adjustment under this guideline shall apply to the 
following:
    (A) An employee of the United States Postal Service who engages in 
the theft or destruction of undelivered United States mail.
    (B) A defendant who exceeds or abuses the authority of his or her 
position in order to obtain unlawfully, or use without authority, any 
means of identification. `Means of identification' has the meaning 
given that term in 18 U.S.C. 1028(d)(7). The following are examples to 
which this subdivision would apply: (i) An employee of a state motor 
vehicle department who exceeds or abuses the authority of his or her 
position by knowingly issuing a driver's license based on false, 
incomplete, or misleading information; (ii) a hospital orderly who 
exceeds or abuses the authority of his or her position by obtaining or 
misusing patient identification information from a patient chart; and 
(iii) a volunteer at a charitable organization who exceeds or abuses 
the authority of his or her position by obtaining or misusing 
identification information from a donor's file.''.
    Section 3D1.1 is amended by striking subsection (b) and inserting 
the following:
    ``(b) Exclude from the application of Sec. Sec.  3D1.2-3D1.5 the 
following:
    (1) Any count for which the statute (A) specifies a term of 
imprisonment to be imposed; and (B) requires that such term of 
imprisonment be imposed to run consecutively to any other term of 
imprisonment. Sentences for such counts are governed by the provisions 
of Sec.  5G1.2(a).
    (2) Any count of conviction under 18 U.S.C. 1028A. See Application 
Note 2(B) of the Commentary to Sec.  5G1.2 (Sentencing on Multiple 
Counts of Conviction) for guidance on how sentences for multiple counts 
of conviction under 18 U.S.C. 1028A should be imposed.''.
    The Commentary to Sec.  5G1.2 captioned ``Application Notes'' is 
amended in Note 2 by inserting ``(A) In General.''--before ``Subsection 
(a) applies''; by inserting ``and 18 U.S.C. 1028A (requiring a 
mandatory term of imprisonment of either two or five years, based on 
the conduct involved, and also requiring, except in the circumstances 
described in subdivision (B), the sentence imposed to run consecutively 
to any other term of imprisonment)'' after ``imprisonment)''; by 
striking ``Note, however,'' and all that follows through ``Sec.  
3624(e).''; and by adding at the end the following:
    ``(B) Multiple Convictions Under 18 U.S.C. 1028A.--Section 1028A of 
title 18, United States Code, generally requires that the mandatory 
term of imprisonment for a violation of such section be imposed 
consecutively to any other term of imprisonment. However, 18 U.S.C. 
1028A(b)(4) permits the court, in its discretion, to impose the 
mandatory term of imprisonment on a defendant for a violation of such 
section ``concurrently, in whole or in part, only with another term of 
imprisonment that is imposed by the court at the same time on that 
person for an additional violation of this section, provided that such 
discretion shall be exercised in accordance with any applicable 
guidelines and policy statements issued by the Sentencing Commission * 
* *''.
    In determining whether multiple counts of 18 U.S.C. 1028A should 
run concurrently with, or consecutively to, each other, the court 
should consider the following non-exhaustive list of factors:
    (i) The nature and seriousness of the underlying offenses. For 
example, the court should consider the appropriateness of imposing 
consecutive, or partially consecutive, terms of imprisonment for 
multiple counts of 18 U.S.C. 1028A in a case in which an underlying 
offense for one of the 18 U.S.C. 1028A offenses is a crime of violence 
or an offense enumerated in 18 U.S.C. 2332b(g)(5)(B).
    (ii) Whether the underlying offenses are groupable under Sec.  
3D1.2 (Multiple Counts). Generally, multiple counts of 18 U.S.C. 1028A 
should run concurrently with one another in cases in which the 
underlying offenses are groupable under Sec.  3D1.2.
    (iii) Whether the purposes of sentencing set forth in 18 U.S.C. 
3553(a)(2) are better achieved by imposing a concurrent or a 
consecutive sentence for multiple counts of 18 U.S.C. 1028A.
    (C) Imposition of Supervised Release.--In the case of a consecutive 
term of imprisonment imposed under subsection (a), any term of 
supervised release imposed is to run concurrently with any other term 
of supervised release imposed.
    See 18 U.S.C. 3624(e).''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 18 U.S.C. 1028 the following:

``18 U.S.C. 1028A 2B1.6''.

    Reason for Amendment: This amendment implements sections 2 and 5 of 
the Identity Theft Penalty Enhancement Act, Public Law 108-275, 118 
Stat. 831 (``the Act''), which create two new criminal offenses at 18 
U.S.C. 1028A and direct the Sentencing Commission to expand the upward 
adjustment at Sec.  3B1.3 (Abuse of Position of Trust/Special Skill). 
This amendment also provides guidance to the courts on imposing 
sentences for multiple violations of section 1028A.
    The Act creates a new offense at 18 U.S.C. 1028A(a)(1) that 
prohibits the unauthorized transfer, use, or possession of a means of 
identification of another person during, or in relation to, specific 
enumerated felonies. These felonies consist of various types of fraud, 
including mail and wire fraud in connection with passports, visas and 
other immigration, nationality, and citizenship laws, programs under 
the Social Security Act, and the acquisition of firearms. A conviction 
under section 1028A(a)(1) carries a two-year mandatory term of 
imprisonment that must run consecutively to any other term of 
imprisonment, including the sentence for the underlying felony 
conviction. The Act also creates a new offense at 18 U.S.C. 1028A(b)(1) 
that prohibits the unauthorized transfer, use, or possession of a means 
of identification of another person during, or in relation to, specific 
felonies enumerated in 18 U.S.C. 2332b(g)(5)(B) (``federal crimes of 
terrorism''). Section 1028A(b)(1) provides a five-year mandatory term 
of imprisonment that must run consecutively to any other term of 
imprisonment, including the sentence for the underlying felony 
conviction. As described below, section

[[Page 24854]]

1028A(b)(4) creates an exception to the requirement for consecutive 
terms of imprisonment in cases involving multiple violations of the 
statute sentenced at the same time.
    First, in response to the creation of these new criminal offenses, 
the amendment creates a new guideline at Sec.  2B1.6 (Aggravated 
Identity Theft). This guideline is patterned after Sec.  2K2.4 (Use of 
a Firearm, Armor-Piercing Ammunition, or Explosive During or in 
Relation to a Certain Crimes). Because the new offenses carry a fixed, 
mandatory consecutive term of imprisonment, the new guideline, as does 
Sec.  2K2.4, provides that the guideline sentence is the term of 
imprisonment required by statute. To avoid unwarranted double-counting, 
the amendment contains an application note that prohibits the 
application of any specific offense characteristic for the transfer, 
possession, or use of a means of identification when determining the 
sentence for the underlying offense in cases in which a sentence under 
Sec.  2B1.6 is imposed in conjunction with a sentence for an underlying 
offense. Also, consistent with Sec.  2K2.4, the new guideline at Sec.  
2B1.6 contains an application note that provides that adjustments under 
Chapters Three and Four are inapplicable to sentences under this 
guideline.
    Second, in response to the directive in section 5 to amend Sec.  
3B1.3 (Abuse of Trust or Use of Special Skill) to include a ``defendant 
[who] exceeds or abuses the authority of his or her position in order 
to obtain unlawfully or use without authority any means of 
identification,'' the Commission created Application Note 2 to Sec.  
3B1.3 to include such defendants within the scope of the guideline. The 
application note contains several examples to illustrate the types of 
conduct intended to be within the scope of the new provision.
    Third, the amendment adds a number of provisions at appropriate 
guidelines in order to provide guidance to courts in accordance with 
section 2 of the Act (18 U.S.C. 1028A(b)(4)). That section states that 
``a term of imprisonment imposed on a person for violation of this 
section may, in the discretion of the court, run concurrently, in whole 
or in part, only with another term of imprisonment that is imposed by 
the court at the same time on that person for an additional violation 
of this section, provided that such discretion shall be exercised in 
accordance with any applicable guidelines and policy statements issued 
by the Sentencing Commission * * *.'' The amendment states a general 
rule, at Sec.  5G1.2 (Sentencing on Multiple Counts of Conviction), 
Application Note 2(B), providing that the court has discretion to 
impose concurrent or consecutive, or partially concurrent and partially 
consecutive, terms of imprisonment for multiple violations of 18 U.S.C. 
1028A. A non-exhaustive list of factors for courts to consider in 
making this determination is provided, including the nature and 
seriousness of the underlying offenses and whether the offenses would 
be groupable under Sec.  3D1.2 (Multiple Counts).
    Finally, the amendment modifies Sec.  3D1.1 (Procedure for 
Determining Offense Level on Multiple Counts) to make clear that 
section 1028A offenses are excluded from the general grouping rules in 
Sec. Sec.  3D1.2-3D1.5 and makes conforming additions and changes to 
the new guideline at Sec.  2B1.6 (Aggravated Identity Theft) in 
Application Note 1 and Sec.  3D1.1(b)(1) and (2).
    2. Amendment: Section 2R1.1(a) is amended by striking ``10'' and 
inserting ``12''.
    Section 2R1.1(b) is amended by striking subdivision (2) and 
inserting the following:
    ``(2) If the volume of commerce attributable to the defendant was 
more than $1,000,000, adjust the offense level as follows:

------------------------------------------------------------------------
  Volume of commerce (apply the greatest)    Adjustment to offense level
------------------------------------------------------------------------
(A) More than $1,000,000..................  add 2.
(B) More than $10,000,000.................  add 4.
(C) More than $40,000,000.................  add 6.
(D) More than $100,000,000................  add 8.
(E) More than $250,000,000................  add 10.
(F) More than $500,000,000................  add 12.
(G) More than $1,000,000,000..............  add 14.
(H) More than $1,500,000,000..............  add 16.
------------------------------------------------------------------------

    For purposes of this guideline, the volume of commerce attributable 
to an individual participant in a conspiracy is the volume of commerce 
done by him or his principal in goods or services that were affected by 
the violation. When multiple counts or conspiracies are involved, the 
volume of commerce should be treated cumulatively to determine a 
single, combined offense level.''.
    The Commentary to Sec.  2R1.1 captioned ``Application Notes'' is 
amended by striking Note 1 and inserting the following:
    ``1. Application of Chapter Three (Adjustments).--Sections 3B1.1 
(Aggravating Role), 3B1.2 (Mitigating Role), 3B1.3 (Abuse of Position 
of Trust or Use of Special Skill), and 3C1.1 (Obstructing or Impeding 
the Administration of Justice) may be relevant in determining the 
seriousness of the defendant's offense. For example, if a sales manager 
organizes or leads the price-fixing activity of five or more 
participants, the 4-level increase at Sec.  3B1.1(a) should be applied 
to reflect the defendant's aggravated role in the offense. For purposes 
of applying Sec.  3B1.2, an individual defendant should be considered 
for a mitigating role adjustment only if he were responsible in some 
minor way for his firm's participation in the conspiracy.''.
    The Commentary to Sec.  2R1.1 captioned ``Application Notes'' is 
amended in Note 2 by striking the first sentence and inserting the 
following:
    ``Considerations in Setting Fine for Individuals.--In setting the 
fine for individuals, the court should consider the extent of the 
defendant's participation in the offense, the defendant's role, and the 
degree to which the defendant personally profited from the offense 
(including salary, bonuses, and career enhancement).''.
    The Commentary to Sec.  2R1.1 captioned ``Background'' is amended 
in the second paragraph by striking the ``The Commission'' and all that 
follows through ``general deterrence.''; in the third paragraph by 
striking ``confinement of six months or longer'' and inserting ``some 
period of confinement''; and in the last paragraph by striking the last 
sentence.
    Reason for Amendment: This amendment responds to the Antitrust 
Criminal Penalty Enhancement and Reform Act of 2004, Pub. L. 108-237 
(the ``Act''). The Act increased the statutory maximum term of 
imprisonment for antitrust offenses under 15 U.S.C. 1 and 3(b) from 
three to ten years. The amendment responds to congressional concern 
about the seriousness of antitrust offenses and provides for antitrust 
penalties that are more proportionate to those for sophisticated frauds 
sentenced under Sec.  2B1.1 (Larceny, Embezzlement, and Other Forms of 
Theft; Offenses Involving Stolen Property; Property Damage or 
Destruction; Fraud and Deceit; Forgery; Offenses Involving Altered or 
Counterfeit Instruments Other than Counterfeit Bearer Obligations of 
the United States). The Commission has long recognized the similarity 
of antitrust offenses to sophisticated frauds.
    The amendment increases the base offense level for antitrust 
offenses in Sec.  2R1.1 (Bid-Rigging, Price-Fixing or Market-Allocation 
Agreements Among Competitors) to level 12. The higher base offense 
level ensures that penalties

[[Page 24855]]

for antitrust offenses will be coextensive with those for sophisticated 
frauds sentenced under Sec.  2B1.1 and recognizes congressional concern 
about the inherent seriousness of antitrust offenses. The penalties for 
sophisticated fraud have been increased incrementally due to a series 
of amendments to Sec.  2B1.1, while no commensurate increases for 
antitrust offenses had occurred. Raising the base offense level of 
Sec.  2R1.1 helps restore the historic proportionality in the treatment 
of antitrust offenses and sophisticated frauds.
    The ``volume of commerce'' table at Sec.  2R1.1(b)(2) is amended to 
provide up to 16 additional offense levels for the defendant whose 
offense involves more than $1,500,000,000, while the new table's first 
threshold is raised from $400,000 to $1,000,000. The new volume of 
commerce table: (1) Recognizes the depreciation in the value of the 
dollar since the table was last revised in 1991; (2) responds to data 
indicating that the financial magnitude of antitrust offenses has 
increased significantly; and (3) provides greater deterrence of large 
scale price-fixing crimes.
    Application Note 1 to Sec.  2R1.1 is amended to emphasize the 
potential relevance of such Chapter Three enhancements as Sec.  3B1.1 
(Aggravating Role), Sec.  3B1.3 (Abuse of Position of Trust or Use of 
Special Skill), and Sec.  3C1.1 (Obstructing or Impeding the 
Administration of Justice) in determining the appropriate sentence for 
an antitrust offender. Application Note 2 also is amended to highlight 
the potential relevance of the defendant's role in the offense in 
determining the amount of fine to be imposed. Finally, the amendment 
strikes outdated background commentary.
    3. Amendment: Section 2A2.4 is amended by striking the Commentary 
captioned ``Background''.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 15 in the first sentence by inserting ``involving 
fraudulent conduct that is'' after ``establishes an offense''; and in 
the second sentence by inserting ``involves fraudulent conduct that'' 
after ``the offense''.
    Section 2B3.3(c)(1) is amended by inserting ``; Fraud Involving the 
Deprivation of the Intangible Right to Honest Services of Public 
Officials; Conspiracy to Defraud by Interference with Governmental 
Functions'' after ``Official Right''.
    Section 2C1.3(c)(1) is amended by inserting ``; Fraud Involving the 
Deprivation of the Intangible Right to Honest Services of Public 
Officials; Conspiracy to Defraud by Interference with Governmental 
Functions'' after ``Official Right''.
    Section 2C1.8(c)(1) is amended by inserting ``; Fraud Involving the 
Deprivation of the Intangible Right to Honest Services of Public 
Officials; Conspiracy to Defraud by Interference with Governmental 
Functions'' after ``Official Right''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 5 in the first paragraph by striking ``whether a 
greater quantity of the analogue is needed to produce a substantially 
similar effect on the central nervous system as'' and inserting 
``whether the same quantity of analogue produces a greater effect on 
the central nervous system than''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 19 by striking ``(b)(5)(A)'' each place it appears and 
inserting ``(b)(6)(A)''; in Note 20 by striking ``(b)(5)(B) or (C)'' 
and inserting ``(b)(6)(B) or (C)''; and by striking ``(b)(5)(C)'' and 
inserting ``(b)(6)(C)''; and in Note 21 by striking ``(b)(6)'' each 
place it appears and inserting ``(b)(7)''.
    The Commentary to Sec.  2D1.1 captioned ``Background'' is amended 
in the ninth paragraph by striking ``(b)(5)(A)'' and inserting 
``(b)(6)(A)''; in the last paragraph and by striking ``(b)(5)(B) and 
(C)'' and inserting ``(b)(6)(B) and (C)''.
    Section 2D1.11(e) is amended in subdivision (1) by striking ``2271 
L or more of Gamma-butyrolactone;'' and inserting ``1135.5 L or more of 
Gamma-butyrolactone;'';
    in subdivision (2) by striking ``At least 681.3 L but less than 
2271 L of Gamma-butyrolactone;'' and inserting ``At least 340.7 L but 
less than 1135.5 L of Gamma-butyrolactone;'';
    in subdivision (3) by striking ``At least 227.1 L but less than 
681.3 L of Gamma-butyrolactone;'' and inserting ``At least 113.6 L but 
less than 340.7 L of Gamma-butyrolactone;'';
    in subdivision (4) by striking ``At least 159 L but less than 227.1 
L of Gamma-butyrolactone;'' and inserting ``At least 79.5 L but less 
than 113.6 L of Gamma-butyrolactone;'';
    in subdivision (5) by striking ``At least 90.8 L but less than 159 
L of Gamma-butyrolactone;'' and inserting ``At least 45.4 L but less 
than 79.5 L of Gamma-butyrolactone;'';
    in subdivision (6) by striking ``At least 22.7 L but less than 90.8 
L of Gamma-butyrolactone;'' and inserting ``At least 11.4 L but less 
than 45.4 L of Gamma-butyrolactone;'';
    in subdivision (7) by striking ``At least 18.2 L but less than 22.7 
L of Gamma-butyrolactone;'' and inserting ``At least 9.1 L but less 
than 11.4 L of Gamma-butyrolactone;'';
    in subdivision (8) by striking ``At least 13.6 L but less than 18.2 
L of Gamma-butyrolactone;'' and inserting ``At least 6.8 L but less 
than 9.1 L of Gamma-butyrolactone;'';
    in subdivision (9) by striking ``At least 9.1 L but less than 13.6 
L of Gamma-butyrolactone;'' and inserting ``At least 4.5 L but less 
than 6.8 L of Gamma-butyrolactone;'';
    and in subdivision (10) by striking ``Less than 9.1 L of Gamma-
butyrolactone;'' and inserting ``Less than 4.5 L of Gamma-
butyrolactone;''.
    The Commentary to Sec.  2K2.1 captioned ``Statutory Provisions'' is 
amended by striking ``(e)-(i), (k)-(o)'' and inserting ``(e)-(h), (j)-
(n)''.
    Section 2M6.1 is amended by striking ``(a)(4)*'' in subsection 
(b)(1)(A) and inserting ``(a)(4)(A)''; and by striking ``*Note: The 
reference to ``(a)(4)'' should be to ``(a)(4)(A)'.''.
    Section 3D1.2(d) is amended by striking ``2C1.7,''.
    The Commentary to Sec.  5D1.2 captioned ``Application Notes'' is 
amended in Note 2 by inserting ``Limitation on'' before ``Applicability 
of Statutory''.
    Section 8C2.1(a) is amended by striking ``, 2C1.7''.
    Appendix A (Statutory Index) is amended by striking the following:

``18 U.S.C. 924(i) 2K2.1
18 U.S.C. 924(j)(1) 2A1.1, 2A1.2
18 U.S.C. 924(j)(2) 2A1.3, 2A1.4
18 U.S.C. 924(k)-(o) 2K2.1'',

    and inserting the following:

``18 U.S.C. 924(i)(1) 2A1.1, 2A1.2
18 U.S.C. 924(i)(2) 2A1.3, 2A1.4
18 U.S.C. 924(j)-(n) 2K2.1''.

    Reason for Amendment: This ten-part amendment consists of technical 
and conforming amendments to various guidelines.
    First, this amendment deletes unnecessary background commentary in 
Sec.  2A2.4 (Obstructing or Impeding Officers).
    Second, this amendment makes minor clarifying amendments to 
Application Note 15 in the fraud guideline, Sec.  2B1.1, to make clear 
that, in order for the cross reference at Sec.  2B1.1(c)(3) to apply, 
the conduct set forth in the count of conviction must establish a fraud 
or false statement-type offense.
    Third, this amendment makes technical amendments to several 
guidelines to conform to changes made in the public corruption 
guidelines in the 2004 amendment cycle (see Appendix C to the 
Guidelines Manual, Amendment 666). Specifically, the proposed amendment 
corrects title references to Sec.  2C1.1 in Sec. Sec.  2B3.3(c)(1),

[[Page 24856]]

2C1.3(c)(1), and 2C1.8(c)(1) and strikes references to Sec.  2C1.7 in 
Sec. Sec.  3D1.2(d) and 8C2.1.
    Fourth, this amendment clarifies Application Note 5 in the drug 
guideline, Sec.  2D1.1, regarding drug analogues. The current note 
suggests that drug analogues are less potent than the drug for which it 
is an analogue. However, by statute, analogues can only be the same or 
more potent.
    Fifth, this amendment redesignates incorrect references in a number 
of Application Notes in the drug guideline, Sec.  2D1.1.
    Sixth, this amendment conforms Sec.  2D1.11 (Unlawfully 
Distributing, Importing, Exporting or Possessing a Listed Chemical; 
Attempt or Conspiracy) to changes made in the drug guideline, Sec.  
2D1.1, in the 2004 amendment cycle (see Appendix C to the Guidelines 
Manual, Amendment 667). Specifically, the proposed amendment amends the 
Chemical Quantity Table in Sec.  2D1.11(e) so that the amount of gamma-
butyrolactone (GBL), at any particular offense level, is the amount 
that provides a 100 percent yield of gamma-hydroxybutyric acid (GHB).
    Seventh, this amendment updates the statutory provisions in Sec.  
2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or 
Ammunition; Prohibited Transactions Involving Firearms or Ammunition) 
to account for redesignations of 18 U.S.C. 924 offenses.
    Eighth, this amendment corrects a typographical error in Sec.  
2M6.1 (Weapons of Mass Destruction).
    Ninth, this amendment corrects the title to Sec.  5C1.2 (Limitation 
on Applicability of Statutory Minimum Sentence in Certain Cases) in 
Application Note 2 of Sec.  5D1.2 (Terms of Supervised Release.).
    Tenth, this amendment corrects Appendix A (Statutory Index) to 
account for redesignations of 18 U.S.C. 924 offenses.

[FR Doc. 05-9378 Filed 5-10-05; 8:45 am]
BILLING CODE 2211-01-P