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d States Munitions List, which is set out in 22 C.F.R. Part 121.1. Included in this list are such things as military aircraft, helicopters, artillery, shells, missiles, rockets, bombs, vessels of war, explosives, military and space electronics, and certain firearms. The base offense level assumes that the offense conduct was harmful or had the potential to be harmful to a security or foreign policy interest of the United States. In the unusual case where the offense conduct posed no such risk, a downward departure may be warranted. In the case of a violation during time of war or armed conflict, an upward departure may be warranted. See Chapter Five, Part K (Departures). 2. In determining the sentence within the applicable guideline range, the court may consider the degree to which the violation threatened a security or foreign policy interest of the United States, the volume of commerce involved, the extent of planning or sophistication, and whether there were multiple occurrences. Where such factors are present in an extreme form, a departure from the guidelines may be warranted. Historical Note: Effective November 1, 1987. Amended effective November 1, 1990 (see Appendix C, amendment 337); November 1, 2001 (see Appendix C, amendment 633). §2M5.3. Providing Material Support or Resources to Designated Foreign Terrorist Organizations or For a Terrorist Purpose (a) Base Offense Level: 26 (b) Specific Offense Characteristic (1) If the offense involved the provision of (A) dangerous weapons; (B) firearms; (C) explosives; (D) funds with the intent, knowledge, or reason to believe such funds would be used to purchase any of the items described in subdivisions (A) through (C); or (E) funds or other material support or resources with the intent, knowledge, or reason to believe they are to be used to commit or assist in the commission of a violent act, increase by 2 levels. (c) Cross References (1) If the offense resulted in death, apply §2A1.1 (First Degree Murder) if the death was caused intentionally or knowingly, or §2A1.2 (Second Degree Murder) otherwise, if the resulting offense level is greater than that determined above. (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. §2M5.3 GUIDELINES MANUAL November 1, 2005 – 264 – (3) If the offense involved the provision of (A) a nuclear weapon, nuclear material, or nuclear byproduct material; (B) a chemical weapon; (C) a biological agent, toxin, or delivery system; or (D) a weapon of mass destruction, apply §2M6.1 (Nuclear, Biological, and Chemical Weapons, and Other Weapons of Mass Destruction), if the resulting offense level is greater than that determined above. Commentary Statutory Provisions: 18 U.S.C. §§ 2339B , 2339C(a)(1)(B), (c)(2)(B) (but only with respect to funds known or intended to have been provided or collected in violation of 18 U.S.C. § 2339C(a)(1)(B)). Application Notes: 1. Definitions.—For purposes of this guideline: "Biological agent", "chemical weapon", "nuclear byproduct material", "nuclear material", "toxin", and "weapon of mass destruction" have the meaning given those terms in Application Note 1 of the Commentary to §2M6.1 (Nuclear, Biological, and Chemical Weapons, and Other Weapons of Mass Destruction). "Dangerous weapon", "firearm", and "destructive device" have the meaning given those terms in Application Note 1 of the Commentary to §1B1.1 (Application Instructions). "Explosives" has the meaning given that term in Application Note 1 of the Commentary to §2K1.4 (Arson; Property Damage by Use of Explosives). "Foreign terrorist organization" has the meaning given the term "terrorist organization" in 18 U.S.C. § 2339B(g)(6). "Material support or resources" has the meaning given that term in 18 U.S.C. § 2339B(g)(4). 2. Departure Provisions.— (A) In General.—In determining the sentence within the applicable guideline range, the court may consider the degree to which the violation threatened a security interest of the United States, the volume of the funds or other material support or resources involved, the extent of planning or sophistication, and whether there were multiple occurrences. In a case in which such factors are present in an extreme form, a departure from the guidelines may be warranted. See Chapter Five, Part K (Departures). (B) War or Armed Conflict.—In the case of a violation during time of war or armed conflict, an upward departure may be warranted. Historical Note: Effective November 1, 2002 (see Appendix C, amendment 637). Amended effective November 1, 2003 (see Appendix C, amendment 655). * * * * * November 1, 2005 GUIDELINES MANUAL §2M6.1 – 265 – 6. NUCLEAR, BIOLOGICAL, AND CHEMICAL WEAPONS AND MATERIALS, AND OTHER WEAPONS OF MASS DESTRUCTION Historical Note: Effective November 1, 1987. Amended effective November 1, 2001 (see Appendix C, amendment 633). §2M6.1. Unlawful Production, Development, Acquisition, Stockpiling, Alteration, Use, Transfer, or Possession of Nuclear Material, Weapons, or Facilities, Biological Agents, Toxins, or Delivery Systems, Chemical Weapons, or Other Weapons of Mass Destruction; Attempt or Conspiracy (a) Base Offense Level (Apply the Greatest): (1) 42, if the offense was committed with intent (A) to injure the United States; or (B) to aid a foreign nation or a foreign terrorist organization; (2) 28, if subsections (a)(1), (a)(3), and (a)(4) do not apply; (3) 22, if the defendant is convicted under 18 U.S.C. § 175b; or (4) 20, if (A) the defendant is convicted under 18 U.S.C. § 175(b); or (B) the offense (i) involved a threat to use a nuclear weapon, nuclear material, or nuclear byproduct material, a chemical weapon, a biological agent, toxin, or delivery system, or a weapon of mass destruction; but (ii) did not involve any conduct evidencing an intent or ability to carry out the threat. (b) Specific Offense Characteristics (1) If (A) subsection (a)(2) or (a)(4)(A) applies; and (B) the offense involved a threat to use, or otherwise involved (i) a select biological agent; (ii) a listed precursor or a listed toxic chemical; (iii) nuclear material or nuclear byproduct material; or (iv) a weapon of mass destruction that contains any agent, precursor, toxic chemical, or material referred to in subdivision (i), (ii), or (iii), increase by 2 levels. (2) If (A) subsection (a)(2), (a)(3), or (a)(4)(A) applies; and (B)(i) any victim died or sustained permanent or life-threatening bodily injury, increase by 4 levels; (ii) any victim sustained serious bodily injury, increase by 2 levels; or (iii) the degree of injury is between that specified in subdivisions (i) and (ii), increase by 3 levels. (3) If (A) subsection (a)(2), (a)(3), or (a)(4) applies; and (B) the offense resulted in (i) substantial disruption of public, governmental, or business functions or services; or (ii) a substantial expenditure of funds to clean up, decontaminate, or otherwise respond to the offense, increase by 4 levels. §2M5.3 GUIDELINES MANUAL November 1, 2005 – 266 – (c) Cross References (1) If the offense resulted in death, apply §2A1.1 (First Degree Murder) if the death was caused intentionally or knowingly, or §2A1.2 (Second Degree Murder) otherwise, if the resulting offense level is greater than that determined above. (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. (d) Special Instruction (1) If the defendant is convicted of a single count involving (A) conduct that resulted in the death or permanent, life-threatening, or serious bodily injury of more than one victim, or (B) conduct tantamount to the attempted murder of more than one victim, Chapter Three, Part D (Multiple Counts) shall be applied as if such conduct in respect to each victim had been contained in a separate count of conviction. Commentary Statutory Provisions: 18 U.S.C. §§ 175, 175b, 229, 831, 842(p)(2) (only with respect to weapons of mass destruction as defined in 18 U.S.C. § 2332a(c)(2)(B), (C), and (D)), 1993(a)(2), (3), (b), 2332a (only with respect to weapons of mass destruction as defined in 18 U.S.C. § 2332a(c)(2)(B), (C), and (D)); 42 U.S.C. §§ 2077(b), 2122, 2131. For additional statutory provision(s), see Appendix A (Statutory Index). Application Notes: 1. Definitions.—For purposes of this guideline: "Biological agent" has the meaning given that term in 18 U.S.C. § 178(1). "Chemical weapon" has the meaning given that term in 18 U.S.C. § 229F(1). "Foreign terrorist organization" (A) means an organization that engages in terrorist activity that threatens the security of a national of the United States or the national security of the United States; and (B) includes an organization designated by the Secretary of State as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act (8 U.S.C. § 1219). "National of the United States" has the meaning given that term in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. § 1101(a)(22)). "Listed precursor or a listed toxic chemical" means a precursor or a toxic chemical, respectively, listed in Schedule I of the Annex on Chemicals to the Chemical Weapons Convention. See 18 U.S.C. § 229F(6)(B), (8)(B). "Precursor" has the meaning given that term in 18 U.S.C. § 229F(6)(A). "Toxic chemical" has the meaning given that term in 18 U.S.C. § 229F(8)(A). November 1, 2005 GUIDELINES MANUAL §2M6.1 – 267 – "Nuclear byproduct material" has the meaning given that term in 18 U.S.C. § 831(f)(2). "Nuclear material" has the meaning given that term in 18 U.S.C. § 831(f)(1). "Restricted person" has the meaning given that term in 18 U.S.C. § 175b(b)(2). "Select biological agent" means a biological agent or toxin identified (A) by the Secretary of Health and Human Services on the select agent list established and maintained pursuant to section 351A of the Public Health Service Act (42 U.S.C. § 262a); or (B) by the Secretary of Agriculture on the list established and maintained pursuant to section 212 of the Agricultural Bioterrorism Protection Act of 2002 (7 U.S.C. § 8401). "Toxin" has the meaning given that term in 18 U.S.C. § 178(2). "Vector" has the meaning given that term in 18 U.S.C. § 178(4). "Weapon of mass destruction" has the meaning given that term in 18 U.S.C. § 2332a(c)(2)(B), (C), and (D). 2. Threat Cases.—Subsection (a)(4)(B) applies in cases that involved a threat to use a weapon, agent, or material covered by this guideline but that did not involve any conduct evidencing an intent or ability to carry out the threat. For example, subsection (a)(4)(B) would apply in a case in which the defendant threatened to contaminate an area with anthrax and also dispersed into the area a substance that appeared to be anthrax but that the defendant knew to be harmless talcum powder. In such a case, the dispersal of talcum powder does not evidence an intent on the defendant’s part to carry out the threat. In contrast, subsection (a)(4)(B) would not apply in a case in which the defendant threatened to contaminate an area with anthrax and also dispersed into the area a substance that the defendant believed to be anthrax but that in fact was harmless talcum powder. In such a case, the dispersal of talcum powder was conduct evidencing an intent to carry out the threat because of the defendant’s belief that the talcum powder was anthrax. Subsection (a)(4)(B) shall not apply in any case involving both a threat to use any weapon, agent, or material covered by this guideline and the possession of that weapon, agent, or material. In such a case, possession of the weapon, agent, or material is conduct evidencing an intent to use that weapon, agent, or material. 3. Application of Special Instruction.—Subsection (d) applies in any case in which the defendant is convicted of a single count involving (A) the death or permanent, life-threatening, or serious bodily injury of more than one victim, or (B) conduct tantamount to the attempted murder of more than one victim, regardless of whether the offense level is determined under this guideline or under another guideline in Chapter Two (Offense Conduct) by use of a cross reference under subsection (c). Historical Note: Effective November 1, 1987. Amended effective November 1, 2001 (see Appendix C, amendment 633); November 1, 2002 (see Appendix C, amendment 637); November 1, 2003 (see Appendix C, amendment 655); November 1, 2005 (see Appendix C, amendment 679). §2M5.3 GUIDELINES MANUAL November 1, 2005 – 268 – §2M6.2. Violation of Other Federal Atomic Energy Agency Statutes, Rules, and Regulations (a) Base Offense Level (Apply the greater): (1) 30, if the offense was committed with intent to injure the United States or to aid a foreign nation; or (2) 6. Commentary Statutory Provision: 42 U.S.C. § 2273. Background: This section applies to offenses related to nuclear energy not specifically addressed elsewhere. This provision covers, for example, violations of statutes dealing with rules and regulations, license conditions, and orders of the Nuclear Regulatory Commission and the Department of Energy. Historical Note: Effective November 1, 1987. Amended effective November 1, 1990 (see Appendix C, amendment 359). November 1, 2005 GUIDELINES MANUAL §2N1.1 – 269 – PART N - OFFENSES INVOLVING FOOD, DRUGS, AGRICULTURAL PRODUCTS, AND ODOMETER LAWS 1. TAMPERING WITH CONSUMER PRODUCTS §2N1.1. Tampering or Attempting to Tamper Involving Risk of Death or Bodily Injury (a) Base Offense Level: 25 (b) Specific Offense Characteristic (1) (A) If any victim sustained permanent or life-threatening bodily injury, increase by 4 levels; (B) if any victim sustained serious bodily injury, increase by 2 levels; or (C) if the degree of injury is between that specified in subdivisions (A) and (B), increase by 3 levels. (c) Cross References (1) If the offense resulted in death, apply §2A1.1 (First Degree Murder) if the death was caused intentionally or knowingly, or §2A1.2 (Second Degree Murder) in any other case. (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. (3) If the offense involved extortion, apply §2B3.2 (Extortion by Force or Threat of Injury or Serious Damage) if the resulting offense level is greater than that determined above. (d) Special Instruction (1) If the defendant is convicted of a single count involving (A) the death or permanent, life-threatening, or serious bodily injury of more than one victim, or (B) conduct tantamount to the attempted murder of more than one victim, Chapter Three, Part D (Multiple Counts) shall be applied as if the defendant had been convicted of a separate count for each such victim. Commentary Statutory Provisions: 18 U.S.C. § 1365(a), (e). Application Notes: 1. The base offense level reflects that this offense typically poses a risk of death or serious bodily injury to one or more victims; or causes, or is intended to cause, bodily injury. Where the §2N2.1 GUIDELINES MANUAL November 1, 2005 – 270 – offense posed a substantial risk of death or serious bodily injury to numerous victims, or caused extreme psychological injury or substantial property damage or monetary loss, an upward departure may be warranted. In the unusual case in which the offense did not cause a risk of death or serious bodily injury, and neither caused nor was intended to cause bodily injury, a downward departure may be warranted. 2. The special instruction in subsection (d)(1) applies whether the offense level is determined under subsection (b)(1) or by use of a cross reference in subsection (c). Historical Note: Effective November 1, 1987. Amended effective November 1, 1990 (see Appendix C, amendment 338); November 1, 1991 (see Appendix C, amendment 376). §2N1.2. Providing False Information or Threatening to Tamper with Consumer Products (a) Base Offense Level: 16 (b) Cross Reference (1) If the offense involved extortion, apply §2B3.2 (Extortion by Force or Threat of Injury or Serious Damage). Commentary Statutory Provisions: 18 U.S.C. § 1365(c), (d). Application Note: 1. If death or bodily injury, extreme psychological injury, or substantial property damage or monetary loss resulted, an upward departure may be warranted. See Chapter Five, Part K (Departures). Historical Note: Effective November 1, 1987. Amended effective November 1, 1990 (see Appendix C, amendment 339). §2N1.3. Tampering With Intent to Injure Business (a) Base Offense Level: 12 Commentary Statutory Provision: 18 U.S.C. § 1365(b). Application Note: November 1, 2005 GUIDELINES MANUAL §2N2.1 – 271 – 1. If death or bodily injury, extreme psychological injury, or substantial property damage or monetary loss resulted, an upward departure may be warranted. See Chapter Five, Part K (Departures). Historical Note: Effective November 1, 1987. * * * * * 2. FOOD, DRUGS, AND AGRIC

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