Online Attorney

mendment 481); November 1, 2001 (see Appendix C, amendment 617). §2B2.2. [Deleted] Historical Note: Section 2B2.2 (Burglary of Other Structures), effective November 1, 1987, amended effective June 15, 1988 (see Appendix C, amendment 13), November 1, 1989 (see Appendix C, amendment 107), and November 1, 1990 (see Appendix C, amendments 315 and 361), was deleted by consolidation with §2B2.1 effective November 1, 1993 (see Appendix C, amendment 481). §2B2.3. Trespass (a) Base Offense Level: 4 (b) Specific Offense Characteristics (1) If the trespass occurred (A) at a secured government facility; (B) at a nuclear energy facility; (C) on a vessel or aircraft of the United States; (D) in a secured area of an airport; (E) at a residence; or (F) on a computer system used (i) to maintain or operate a critical infrastructure; or (ii) by or for a government entity in furtherance of the administration of justice, national defense, or national security, increase by 2 levels. (2) If a dangerous weapon (including a firearm) was possessed, increase by 2 levels. (3) If (A) the offense involved invasion of a protected computer; and (B) the loss resulting from the invasion (i) exceeded $2,000 but did not exceed $5,000, increase by 1 level; or (ii) exceeded $5,000, increase by the number of levels from the table in §2B1.1 (Theft, Property Destruction, and Fraud) corresponding to that amount. November 1, 2005 GUIDELINES MANUAL §2B2.3 – 103 – (c) Cross Reference (1) If the offense was committed with the intent to commit a felony offense, apply §2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that felony offense, if the resulting offense level is greater than that determined above. Commentary Statutory Provisions: 18 U.S.C. §§ 1030(a)(3), 1036; 42 U.S.C. § 7270b. For additional statutory provision(s), see Appendix A (Statutory Index). Application Notes: 1. Definitions.—For purposes of this guideline: "Airport" has the meaning given that term in section 47102 of title 49, United States Code. "Critical infrastructure" means systems and assets vital to national defense, national security, economic security, public health or safety, or any combination of those matters. A critical infrastructure may be publicly or privately owned. Examples of critical infrastructures include gas and oil production, storage, and delivery systems, water supply systems, telecommunications networks, electrical power delivery systems, financing and banking systems, emergency services (including medical, police, fire, and rescue services), transportation systems and services (including highways, mass transit, airlines, and airports), and government operations that provide essential services to the public. "Felony offense" means any offense (federal, state, or local) punishable by imprisonment for a term exceeding one year, whether or not a criminal charge was brought or a conviction was obtained. "Firearm" and "dangerous weapon" are defined in the Commentary to §1B1.1 (Application Instructions). "Government entity" has the meaning given that term in 18 U.S.C. § 1030(e)(9). "Protected computer" means a computer described in 18 U.S.C. § 1030(e)(2)(A) or (B). 2. Valuation of loss is discussed in the Commentary to §2B1.1 (Theft, Property Destruction, and Fraud). Background: Most trespasses punishable under federal law involve federal lands or property. The trespass section provides an enhancement for offenses involving trespass on secured government installations, such as nuclear facilities, to protect a significant federal interest. Additionally, an enhancement is provided for trespass at a residence. §2B2.3 GUIDELINES MANUAL November 1, 2005 – 104 – Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendments 108 and 109); November 1, 1997 (see Appendix C, amendment 551); November 1, 2001 (see Appendix C, amendment 617); November 1, 2002 (see Appendix C, amendment 637); November 1, 2003 (see Appendix C, amendment 654). * * * * * 3. ROBBERY, EXTORTION, AND BLACKMAIL §2B3.1. Robbery (a) Base Offense Level: 20 (b) Specific Offense Characteristics (1) If the property of a financial institution or post office was taken, or if the taking of such property was an object of the offense, increase by 2 levels. (2) (A) If a firearm was discharged, increase by 7 levels; (B) if a firearm was otherwise used, increase by 6 levels; (C) if a firearm was brandished or possessed, increase by 5 levels; (D) if a dangerous weapon was otherwise used, increase by 4 levels; (E) if a dangerous weapon was brandished or possessed, increase by 3 levels; or (F) if a threat of death was made, increase by 2 levels. (3) If any victim sustained bodily injury, increase the offense level according to the seriousness of the injury: Degree of Bodily Injury Increase in Level (A) Bodily Injury add 2 (B) Serious Bodily Injury add 4 (C) Permanent or Life-Threatening Bodily Injury add 6 (D) If the degree of injury is between that specified in subdivisions (A) and (B), add 3 levels; or (E) If the degree of injury is between that specified in subdivisions (B) and (C), add 5 levels. Provided, however, that the cumulative adjustments from (2) and (3) shall not exceed 11 levels. (4) (A) If any person was abducted to facilitate commission of the offense or to facilitate escape, increase by 4 levels; or (B) if any person was November 1, 2005 GUIDELINES MANUAL §2B3.2 – 105 – physically restrained to facilitate commission of the offense or to facilitate escape, increase by 2 levels. (5) If the offense involved carjacking, increase by 2 levels. (6) If a firearm, destructive device, or controlled substance was taken, or if the taking of such item was an object of the offense, increase by 1 level. (7) If the loss exceeded $10,000, increase the offense level as follows: Loss (Apply the Greatest) Increase in Level (A) $10,000 or less no increase (B) More than $10,000 add 1 (C) More than $50,000 add 2 (D) More than $250,000 add 3 (E) More than $800,000 add 4 (F) More than $1,500,000 add 5 (G) More than $2,500,000 add 6 (H) More than $5,000,000 add 7. (c) Cross Reference (1) If a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States, apply §2A1.1 (First Degree Murder). Commentary Statutory Provisions: 18 U.S.C. §§ 1951, 2113, 2114, 2118(a), 2119. For additional statutory provision(s), see Appendix A (Statutory Index). Application Notes: 1. "Firearm," "destructive device," "dangerous weapon," "otherwise used," "brandished," "bodily injury," "serious bodily injury," "permanent or life-threatening bodily injury," "abducted," and "physically restrained" are defined in the Commentary to §1B1.1 (Application Instructions). "Carjacking" means the taking or attempted taking of a motor vehicle from the person or presence of another by force and violence or by intimidation. 2. Consistent with Application Note 1(d)(ii) of §1B1.1 (Application Instructions), an object shall be considered to be a dangerous weapon for purposes of subsection (b)(2)(E) if (A) the object closely resembles an instrument capable of inflicting death or serious bodily injury; or (B) the defendant used the object in a manner that created the impression that the object was an instrument capable of inflicting death or serious bodily injury (e.g., a defendant wrapped a hand in a towel during a bank robbery to create the appearance of a gun). §2B3.1 GUIDELINES MANUAL November 1, 2005 – 106 – 3. "Loss" means the value of the property taken, damaged, or destroyed. 4. The combined adjustments for weapon involvement and injury are limited to a maximum enhancement of 11 levels. 5. If the defendant intended to murder the victim, an upward departure may be warranted; see §2A2.1 (Assault with Intent to Commit Murder; Attempted Murder). 6. "A threat of death," as used in subsection (b)(2)(F), may be in the form of an oral or written statement, act, gesture, or combination thereof. Accordingly, the defendant does not have to state expressly his intent to kill the victim in order for the enhancement to apply. For example, an oral or written demand using words such as "Give me the money or I will kill you", "Give me the money or I will pull the pin on the grenade I have in my pocket", "Give me the money or I will shoot you", "Give me your money or else (where the defendant draws his hand across his throat in a slashing motion)", or "Give me the money or you are dead" would constitute a threat of death. The court should consider that the intent of this provision is to provide an increased offense level for cases in which the offender(s) engaged in conduct that would instill in a reasonable person, who is a victim of the offense, a fear of death. Background: Possession or use of a weapon, physical injury, and unlawful restraint sometimes occur during a robbery. The guideline provides for a range of enhancements where these factors are present. Although in pre-guidelines practice the amount of money taken in robbery cases affected sentence length, its importance was small compared to that of the other harm involved. Moreover, because of the relatively high base offense level for robbery, an increase of 1 or 2 levels brings about a considerable increase in sentence length in absolute terms. Accordingly, the gradations for property loss increase more slowly than for simple property offenses. The guideline provides an enhancement for robberies where a victim was forced to accompany the defendant to another location, or was physically restrained by being tied, bound, or locked up. Historical Note: Effective November 1, 1987. Amended effective June 15, 1988 (see Appendix C, amendments 14 and 15); November 1, 1989 (see Appendix C, amendments 110 and 111); November 1, 1990 (see Appendix C, amendments 314, 315, and 361); November 1, 1991 (see Appendix C, amendment 365); November 1, 1993 (see Appendix C, amendment 483); November 1, 1997 (see Appendix C, amendments 545 and 552); November 1, 2000 (see Appendix C, amendment 601); November 1, 2001 (see Appendix C, amendment 617). §2B3.2. Extortion by Force or Threat of Injury or Serious Damage (a) Base Offense Level: 18 (b) Specific Offense Characteristics (1) If the offense involved an express or implied threat of death, bodily injury, or kidnapping, increase by 2 levels. (2) If the greater of the amount demanded or the loss to the victim exceeded $10,000, increase by the corresponding number of levels from the table in §2B3.1(b)(7). November 1, 2005 GUIDELINES MANUAL §2B3.2 – 107 – (3) (A)(i) If a firearm was discharged, increase by 7 levels; (ii) if a firearm was otherwise used, increase by 6 levels; (iii) if a firearm was brandished or possessed, increase by 5 levels; (iv) if a dangerous weapon was otherwise used, increase by 4 levels; or (v) if a dangerous weapon was brandished or possessed, increase by 3 levels; or (B) If (i) the offense involved preparation to carry out a threat of (I) death; (II) serious bodily injury; (III) kidnapping; (IV) product tampering; or (V) damage to a computer system used to maintain or operate a critical infrastructure, or by or for a government entity in furtherance of the administration of justice, national defense, or national security; or (ii) the participant(s) otherwise demonstrated the ability to carry out a threat described in any of subdivisions (i)(I) through (i)(V), increase by 3 levels. (4) If any victim sustained bodily injury, increase the offense level according to the seriousness of the injury: Degree of Bodily Injury Increase in Level (A) Bodily Injury add 2 (B) Serious Bodily Injury add 4 (C) Permanent or Life-Threatening Bodily Injury add 6 (D) If the degree of injury is between that specified in subdivisions (A) and (B), add 3 levels; or (E) If the degree of injury is between that specified in subdivisions (B) and (C), add 5 levels. Provided, however, that the cumulative adjustments from (3) and (4) shall not exceed 11 levels. (5) (A) If any person was abducted to facilitate commission of the offense or to facilitate escape, increase by 4 levels; or (B) if any person was physically restrained to facilitate commission of the offense or to facilitate escape, increase by 2 levels. (c) Cross References (1) If a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States, apply §2A1.1 (First Degree Murder). (2) If the offense was tantamount to attempted murder, apply §2A2.1 (Assault with Intent to Commit Murder; Attempted Murder) if the resulting offense level is greater than that determined above. §2B3.2 GUIDELINES MANUAL November 1, 2005 – 108 – Commentary Statutory Provisions: 18 U.S.C. §§ 875(b), 876, 877, 1030(a)(7), 1951. For additional statutory provision(s), see Appendix A (Statutory Index). Application Notes: 1. Definitions.—For purposes of this guideline: "Abducted," "bodily injury," "brandished," "dangerous weapon," "firearm," "otherwise used," "permanent or life-threatening bodily injury," "physically restrained," and "serious bodily injury" have the meaning given those terms in Application Note 1 of the Commentary to §1B1.1 (Application Instructions). "Critical infrastructure" means systems and assets vital to national defense, national security, economic security, public health or safety, or any combination of those matters. A critical infrastructure may be publicly or privately owned. Examples of critical infrastructures include gas and oil production, storage, and delivery systems, water supply systems, telecommunications networks, electrical power delivery systems, financing and banking systems, emergency services (including medical, police, fire, and rescue services), transportation systems and services (including highways, mass transit, airlines, and airports), and government operations that provide essential services to the public. "Government entity" has the meaning given that term in 18 U.S.C. § 1030(e)(9). 2. This guideline applies if there was any threat, express or implied, that reasonably could be interpreted as one to injure a person or physically damage property, or any comparably serious threat, such as to drive an enterprise out of business. Even if the threat does not in itself imply violence, the possibility of violence or serious adverse consequences may be inferred from the circumstances of the threat or the reputation of the person making it. An ambiguous threat, such as "pay up or else," or a threat to cause labor problems, ordinarily should be treated under this section. 3. Guidelines for bribery involving public officials are found in Part C, Offenses Involving Public Officials. "Extortion under color of official right," which usually is solicitation of a bribe by a public official, is covered under §2C1.1 unless there is use of force or a threat that qualifies for treatment under this section. Certain other extortion offenses are covered under the provisions of Part E, Offenses Involving Criminal Enterprises and Racketeering. 4. The combined adjustments for weapon involvement and injury are limited to a maximum enhancement of 11 levels. 5. "Loss to the victim," as used in subsection (b)(2), means any demand paid plus any additional consequential loss from the offense (e.g., the cost of defensive measures taken in direct response to the offense). 6. In certain cases, an extortionate demand may be accompanied by conduct that does not qualify as a display of a dangerous weapon under subsection (b)(3)(A)(v) but is nonetheless similar November 1, 2005 GUIDELINES MANUAL §2B3.3 – 109 – in seriousness, demonstrating the defendant’s preparation or ability to carry out the threatened harm (e.g., an extortionate demand containing a threat to tamper with a consumer product accompanied by a workable plan showing how the product’s tamper-resistant seals could be defeated, or a threat to kidnap a person accompanied by information showing study of that person’s daily routine). Subsection (b)(3)(B) addresses such cases. 7. If the offense involved the threat of death or serious bodily injury to numerous victims (e.g., in the case of a plan to derail a passenger train or poison consumer products), an upward departure may be warranted. 8. If the offense involved organized criminal activity, or a threat to a family member of the victim, an upward departure may be warranted. Background: The Hobbs Act, 18 U.S.C. § 1951, prohibits extortion, attempted extortion, and conspiracy to extort. It provides for a maximum term of imprisonment of twenty years. 18 U.S.C. §§ 875-877 prohibit communication of extortionate demands through various means. The maximum penalty under these statutes varies from two to twenty years. Violations of 18 U.S.C. § 875 involve threats or demands transmitted by interstate commerce. Violations of 18 U.S.C. § 876 involve the use of the United States mails to communicate threats, while violations of 18 U.S.C. § 877 involve mailing threatening communicati

Online Attorney