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ULTURAL PRODUCTS §2N2.1. Violations of Statutes and Regulations Dealing With Any Food, Drug, Biological Product, Device, Cosmetic, or Agricultural Product (a) Base Offense Level: 6 (b) Cross References (1) If the offense involved fraud, apply §2B1.1 (Theft, Property Destruction, and Fraud). (2) If the offense was committed in furtherance of, or to conceal, an offense covered by another offense guideline, apply that other offense guideline if the resulting offense level is greater than that determined above. Commentary Statutory Provisions: 7 U.S.C. §§ 150bb, 150gg, 6810, 7734, 8313; 21 U.S.C. §§ 115, 117, 122, 134-134e, 151-158, 331, 333(a)(1), (a)(2), (b), 458-461, 463, 466, 610, 611, 614, 617, 619, 620, 642- 644, 676; 42 U.S.C. § 262. For additional statutory provision(s), see Appendix A (Statutory Index). Application Notes: 1. This guideline assumes a regulatory offense that involved knowing or reckless conduct. Where only negligence was involved, a downward departure may be warranted. See Chapter Five, Part K (Departures). 2. The cross reference at subsection (b)(1) addresses cases in which the offense involved fraud. The cross reference at subsection (b)(2) addresses cases in which the offense was committed in furtherance of, or to conceal, an offense covered by another offense guideline (e.g., bribery). 3. If death or bodily injury, extreme psychological injury, property damage or monetary loss resulted, an upward departure may be warranted. See Chapter Five, Part K (Departures). 4. The Commission has not promulgated a guideline for violations of 21 U.S.C. § 333(e) (offenses involving human growth hormones). Offenses involving anabolic steroids are covered by Chapter Two, Part D (Offenses Involving Drugs). In the case of an offense involving a §2N2.1 GUIDELINES MANUAL November 1, 2005 – 272 – substance purported to be an anabolic steroid, but not containing any active ingredient, apply §2B1.1 (Theft, Property Destruction, and Fraud) with "loss" measured by the amount paid, or to be paid, by the victim for such substance. Historical Note: Effective November 1, 1987. Amended effective November 1, 1990 (see Appendix C, amendment 340); November 1, 1991 (see Appendix C, amendment 432); November 1, 1992 (see Appendix C, amendment 451); November 1, 2001 (see Appendix C, amendment 617); November 1, 2002 (see Appendix C, amendment 646); November 1, 2003 (see Appendix C, amendment 661). * * * * * 3. ODOMETER LAWS AND REGULATIONS §2N3.1. Odometer Laws and Regulations (a) Base Offense Level: 6 (b) Cross Reference (1) If the offense involved more than one vehicle, apply §2B1.1 (Theft, Property Destruction, and Fraud). Commentary Statutory Provisions: 49 U.S.C. §§ 32703-32705, 32709(b). Background: The base offense level takes into account the deceptive aspect of the offense assuming a single vehicle was involved. If more than one vehicle was involved, §2B1.1 (Theft, Property Destruction, and Fraud) is to be applied because it is designed to deal with a pattern or scheme. Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendment 199); November 1, 1997 (see Appendix C, amendment 553); November 1, 2001 (see Appendix C, amendment 617). November 1, 2005 GUIDELINES MANUAL §2P1.1 – 273 – PART P - OFFENSES INVOLVING PRISONS AND CORRECTIONAL FACILITIES §2P1.1. Escape, Instigating or Assisting Escape (a) Base Offense Level: (1) 13, if the custody or confinement is by virtue of an arrest on a charge of felony, or conviction of any offense; (2) 8, otherwise. (b) Specific Offense Characteristics (1) If the use or the threat of force against any person was involved, increase by 5 levels. (2) If the defendant escaped from non-secure custody and returned voluntarily within ninety-six hours, decrease the offense level under §2P1.1(a)(1) by 7 levels or the offense level under §2P1.1(a)(2) by 4 levels. Provided, however, that this reduction shall not apply if the defendant, while away from the facility, committed any federal, state, or local offense punishable by a term of imprisonment of one year or more. (3) If the defendant escaped from the non-secure custody of a community corrections center, community treatment center, "halfway house," or similar facility, and subsection (b)(2) is not applicable, decrease the offense level under subsection (a)(1) by 4 levels or the offense level under subsection (a)(2) by 2 levels. Provided, however, that this reduction shall not apply if the defendant, while away from the facility, committed any federal, state, or local offense punishable by a term of imprisonment of one year or more. (4) If the defendant was a law enforcement or correctional officer or employee, or an employee of the Department of Justice, at the time of the offense, increase by 2 levels. Commentary Statutory Provisions: 18 U.S.C. §§ 751, 752, 755; 28 U.S.C. § 1826. For additional statutory provision(s), see Appendix A (Statutory Index). Application Notes: 1. "Non-secure custody" means custody with no significant physical restraint (e.g., where a defendant walked away from a work detail outside the security perimeter of an institution; where a defendant failed to return to any institution from a pass or unescorted furlough; or where a defendant escaped from an institution with no physical perimeter barrier). §2P1.1 GUIDELINES MANUAL November 1, 2005 – 274 – 2. "Returned voluntarily" includes voluntarily returning to the institution or turning one’s self in to a law enforcement authority as an escapee (not in connection with an arrest or other charges). 3. If the adjustment in subsection (b)(4) applies, no adjustment is to be made under §3B1.3 (Abuse of Position of Trust or Use of Special Skill). 4. If death or bodily injury resulted, an upward departure may be warranted. See Chapter Five, Part K (Departures). 5. Criminal history points under Chapter Four, Part A (Criminal History) are to be determined independently of the application of this guideline. For example, in the case of a defendant serving a one-year sentence of imprisonment at the time of the escape, criminal history points from §4A1.1(b) (for the sentence being served at the time of the escape), §4A1.1(d) (custody status), and §4A1.1(e) (recency) would be applicable. 6. If the adjustment in subsection (b)(1) applies as a result of conduct that involves an official victim, do not apply §3A1.2 (Official Victim). Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendments 200 and 201); November 1, 1990 (see Appendix C, amendment 341); November 1, 1991 (see Appendix C, amendment 406). §2P1.2. Providing or Possessing Contraband in Prison (a) Base Offense Level: (1) 23, if the object was a firearm or destructive device. (2) 13, if the object was a weapon (other than a firearm or a destructive device), any object that might be used as a weapon or as a means of facilitating escape, ammunition, LSD, PCP, methamphetamine, or a narcotic drug. (3) 6, if the object was an alcoholic beverage, United States or foreign currency, or a controlled substance (other than LSD, PCP, methamphetamine, or a narcotic drug). (4) 4, if the object was any other object that threatened the order, discipline, or security of the institution or the life, health, or safety of an individual. (b) Specific Offense Characteristic (1) If the defendant was a law enforcement or correctional officer or employee, or an employee of the Department of Justice, at the time of the offense, increase by 2 levels. (c) Cross Reference November 1, 2005 GUIDELINES MANUAL §2P1.2 – 275 – (1) If the object of the offense was the distribution of a controlled substance, apply the offense level from §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking; Attempt or Conspiracy). Provided, that if the defendant is convicted under 18 U.S.C. § 1791(a)(1) and is punishable under 18 U.S.C. § 1791(b)(1), and the resulting offense level is less than level 26, increase to level 26. Commentary Statutory Provision: 18 U.S.C. § 1791. Application Notes: 1. If the adjustment in §2P1.2(b)(1) applies, no adjustment is to be made under §3B1.3 (Abuse of Position of Trust or Use of Special Skill). 2. In a case in which the defendant is convicted of the underlying offense and an offense involving providing or possessing a controlled substance in prison, group the offenses together under §3D1.2(c). (Note that 18 U.S.C. § 1791(b) does not require a sentence of imprisonment, although if a sentence of imprisonment is imposed on a count involving providing or possessing a controlled substance in prison, section 1791(c) requires that the sentence be imposed to run consecutively to any other sentence of imprisonment for the controlled substance. Therefore, unlike a count in which the statute mandates both a minimum and a consecutive sentence of imprisonment, the grouping rules of §§3D1.1-3D1.5 apply. See §3D1.1(b)(1), comment. (n.1), and §3D1.2, comment. (n.1).) The combined sentence will then be constructed to provide a "total punishment" that satisfies the requirements both of §5G1.2 (Sentencing on Multiple Counts of Conviction) and 18 U.S.C. § 1791(c). For example, if the combined applicable guideline range for both counts is 30-37 months and the court determines a "total punishment" of 36 months is appropriate, a sentence of 30 months for the underlying offense plus a consecutive six months’ sentence for the providing or possessing a controlled substance in prison count would satisfy these requirements. Pursuant to 18 U.S.C. § 1791(c), a sentence imposed upon an inmate for a violation of 18 U.S.C. § 1791 shall be consecutive to the sentence being served by the inmate at the time of the violation. Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendments 202 and 203); November 1, 1995 (see Appendix C, amendment 525); November 1, 1998 (see Appendix C, amendment 579); November 1, 2005 (see Appendix C, amendment 680). §2P1.3. Engaging In, Inciting or Attempting to Incite a Riot Involving Persons in a Facility for Official Detention (a) Base Offense Level: (1) 22, if the offense was committed under circumstances creating a substantial risk of death or serious bodily injury to any person. §2P1.3 GUIDELINES MANUAL November 1, 2005 – 276 – (2) 16, if the offense involved a major disruption to the operation of an institution. (3) 10, otherwise. Commentary Statutory Provision: 18 U.S.C. § 1792. Application Note: 1. If death or bodily injury resulted, an upward departure may be warranted. See Chapter Five, Part K (Departures). Historical Note: Effective November 1, 1987. §2P1.4. [Deleted] Historical Note: Section 2P1.4 (Trespass on Bureau of Prisons Facilities), effective November 1, 1987, was deleted effective November 1, 1989 (see Appendix C, amendment 204). November 1, 2005 GUIDELINES MANUAL §2Q1.2 – 277 – PART Q - OFFENSES INVOLVING THE ENVIRONMENT 1. ENVIRONMENT §2Q1.1. Knowing Endangerment Resulting From Mishandling Hazardous or Toxic Substances, Pesticides or Other Pollutants (a) Base Offense Level: 24 Commentary Statutory Provisions: 33 U.S.C. § 1319(c)(3); 42 U.S.C. § 6928(e). Application Note: 1. If death or serious bodily injury resulted, an upward departure may be warranted. See Chapter Five, Part K (Departures). Background: This section applies to offenses committed with knowledge that the violation placed another person in imminent danger of death or serious bodily injury. Historical Note: Effective November 1, 1987. §2Q1.2. Mishandling of Hazardous or Toxic Substances or Pesticides; Recordkeeping, Tampering, and Falsification; Unlawfully Transporting Hazardous Materials in Commerce (a) Base Offense Level: 8 (b) Specific Offense Characteristics (1) (A) If the offense resulted in an ongoing, continuous, or repetitive discharge, release, or emission of a hazardous or toxic substance or pesticide into the environment, increase by 6 levels; or (B) if the offense otherwise involved a discharge, release, or emission of a hazardous or toxic substance or pesticide, increase by 4 levels. (2) If the offense resulted in a substantial likelihood of death or serious bodily injury, increase by 9 levels. (3) If the offense resulted in disruption of public utilities or evacuation of a community, or if cleanup required a substantial expenditure, increase by 4 levels. (4) If the offense involved transportation, treatment, storage, or disposal §2Q1.2 GUIDELINES MANUAL November 1, 2005 – 278 – without a permit or in violation of a permit, increase by 4 levels. (5) If a recordkeeping offense reflected an effort to conceal a substantive environmental offense, use the offense level for the substantive offense. (6) If the offense involved a simple recordkeeping or reporting violation only, decrease by 2 levels. (7) If the defendant was convicted under 49 U.S.C. § 5124 or § 46312, increase by 2 levels. Commentary Statutory Provisions: 7 U.S.C. §§ 136j-136l; 15 U.S.C. §§ 2614 and 2615; 33 U.S.C. §§ 1319(c)(1), (2), 1321(b)(5), 1517(b); 42 U.S.C. §§ 300h-2, 6928(d), 7413, 9603(b), (c), (d); 43 U.S.C. §§ 1350, 1816(a), 1822(b); 49 U.S.C. §§ 5124, 46312. For additional statutory provision(s), see Appendix A (Statutory Index). Application Notes: 1. "Recordkeeping offense" includes both recordkeeping and reporting offenses. The term is to be broadly construed as including failure to report discharges, releases, or emissions where required; the giving of false information; failure to file other required reports or provide necessary information; and failure to prepare, maintain, or provide records as prescribed. 2. "Simple recordkeeping or reporting violation" means a recordkeeping or reporting offense in a situation where the defendant neither knew nor had reason to believe that the recordkeeping offense would significantly increase the likelihood of any substantive environmental harm. 3. This section applies to offenses involving pesticides or substances designated toxic or hazardous at the time of the offense by statute or regulation. A listing of hazardous and toxic substances in the guidelines would be impractical. Several federal statutes (or regulations promulgated thereunder) list toxics, hazardous wastes and substances, and pesticides. These lists, such as those of toxic pollutants for which effluent standards are published under the Federal Water Pollution Control Act (e.g., 33 U.S.C. § 1317) as well as the designation of hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (e.g., 42 U.S.C. § 9601(14)), are revised from time to time. "Toxic" and "hazardous" are defined differently in various statutes, but the common dictionary meanings of the words are not significantly different. 4. Except when the adjustment in subsection (b)(6) for simple recordkeeping offenses applies, this section assumes knowing conduct. In cases involving negligent conduct, a downward departure may be warranted. 5. Subsection (b)(1) assumes a discharge or emission into the environment resulting in actual environmental contamination. A wide range of conduct, involving the handling of different quantities of materials with widely differing propensities, potentially is covered. Depending upon the harm resulting from the emission, release or discharge, the quantity and nature of the substance or pollutant, the duration of the offense and the risk associated with the violation, November 1, 2005 GUIDELINES MANUAL §2Q1.2 – 279 – a departure of up to two levels in either direction from the offense levels prescribed in these specific offense characteristics may be appropriate. 6. Subsection (b)(2) applies to offenses where the public health is seriously endangered. Depending upon the nature of the risk created and the number of people placed at risk, a departure of up to three levels upward or downward may be warranted. If death or serious bodily injury results, a departure would be called for. See Chapter Five, Part K (Departures). 7. Subsection (b)(3) provides an enhancement where a public disruption, evacuation or cleanup at substantial expense has been required. Depending upon the nature of the contamination involved, a departure of up to two levels either upward or downward could be warranted. 8. Subsection (b)(4) applies where the offense involved violation of a permit, or where there was a failure to obtain a permit when one was required. Depending upon the nature and quantity of the substance involved and the risk associated with the offense, a departure of up to two levels either upward or downward may be warranted. 9. Other Upward Departure Provisions.— (A) Civil Adjudications and Failure to Comply with Administrative Order.—In a case in which the defendant has previously engaged in similar misconduct established by a civil adjudication or has failed to comply with an administrative order, an upward departure may be warranted. See §4A1.3 (Departures Based on Inadequacy of Criminal History Category). (B) Extreme Psychological Injury.—If the offense caused extreme psychological injury, an upwar

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