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guideline, apply that offense guideline if the resulting offense level is greater than that determined above. Commentary Statutory Provisions: 18 U.S.C. §§ 496, 541-545, 547, 548, 550, 551, 1915; 19 U.S.C. §§ 283, 1436, 1464, 1465, 1586(e), 1708(b). For additional statutory provision(s), see Appendix A (Statutory Index). Application Notes: 1. A sentence at or near the minimum of the guideline range typically would be appropriate for cases involving tourists who bring in items for their own use. Such conduct generally poses a lesser threat to revenue collection. 2. Particular attention should be given to those items for which entry is prohibited, limited, or restricted. Especially when such items are harmful or protective quotas are in effect, the duties evaded on such items may not adequately reflect the harm to society or protected industries resulting from their importation. In such instances, an upward departure may be warranted. A sentence based upon an alternative measure of the "duty" evaded, such as the increase in market value due to importation, or 25 percent of the items’ fair market value in the United States if the increase in market value due to importation is not readily ascertainable, might be considered. 3. Sophisticated Means.—For purposes of subsection (b)(1), "sophisticated means" means especially complex or especially intricate offense conduct pertaining to the execution or concealment of an offense. Conduct such as hiding assets or transactions, or both, through the use of fictitious entities, corporate shells, or offshore financial accounts ordinarily indicates sophisticated means. November 1, 2005 GUIDELINES MANUAL §2T4.1 – 309 – Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendment 235); November 1, 1991 (see Appendix C, amendment 410); November 1, 1992 (see Appendix C, amendment 453); November 1, 1998 (see Appendix C, amendment 577); November 1, 2001 (see Appendix C, amendment 617). §2T3.2. [Deleted] Historical Note: Section 2T3.2 (Receiving or Trafficking in Smuggled Property), effective November 1, 1987, amended effective November 1, 1989 (see Appendix C, amendment 236) and November 1, 1991 (see Appendix C, amendment 410), was deleted by consolidation with §2T3.1 effective November 1, 1992 (see Appendix C, amendment 453). * * * * * 4. TAX TABLE §2T4.1. Tax Table Tax Loss (Apply the Greatest) Offense Level (A) $2,000 or less 6 (B) More than $2,000 8 (C) More than $5,000 10 (D) More than $12,500 12 (E) More than $30,000 14 (F) More than $80,000 16 (G) More than $200,000 18 (H) More than $400,000 20 (I) More than $1,000,000 22 (J) More than $2,500,000 24 (K) More than $7,000,000 26 (L) More than $20,000,000 28 (M) More than $50,000,000 30 (N) More than $100,000,000 32 (O) More than $200,000,000 34 (P) More than $400,000,000 36. Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendment 237); November 1, 1993 (see Appendix C, amendment 491); November 1, 2001 (see Appendix C, amendment 617); January 25, 2003 (see Appendix C, amendment 647); November 1, 2003 (see Appendix C, 653). §2X1.1 GUIDELINES MANUAL November 1, 2005 – 310 – PART X - OTHER OFFENSES 1. CONSPIRACIES, ATTEMPTS, SOLICITATIONS §2X1.1. Attempt, Solicitation, or Conspiracy (Not Covered by a Specific Offense Guideline) (a) Base Offense Level: The base offense level from the guideline for the substantive offense, plus any adjustments from such guideline for any intended offense conduct that can be established with reasonable certainty. (b) Specific Offense Characteristics (1) If an attempt, decrease by 3 levels, unless the defendant completed all the acts the defendant believed necessary for successful completion of the substantive offense or the circumstances demonstrate that the defendant was about to complete all such acts but for apprehension or interruption by some similar event beyond the defendant’s control. (2) If a conspiracy, decrease by 3 levels, unless the defendant or a coconspirator completed all the acts the conspirators believed necessary on their part for the successful completion of the substantive offense or the circumstances demonstrate that the conspirators were about to complete all such acts but for apprehension or interruption by some similar event beyond their control. (3) (A) If a solicitation, decrease by 3 levels unless the person solicited to commit or aid the substantive offense completed all the acts he believed necessary for successful completion of the substantive offense or the circumstances demonstrate that the person was about to complete all such acts but for apprehension or interruption by some similar event beyond such person’s control. (B) If the statute treats solicitation of the substantive offense identically with the substantive offense, do not apply subdivision (A) above; i.e., the offense level for solicitation is the same as that for the substantive offense. (c) Cross Reference (1) When an attempt, solicitation, or conspiracy is expressly covered by another offense guideline section, apply that guideline section. (d) Special Instruction (1) Subsection (b) shall not apply to: (A) Any of the following offenses, if such offense involved, or was intended to promote, a federal crime of terrorism as defined in 18 November 1, 2005 GUIDELINES MANUAL §2X3.1 – 311 – U.S.C. § 2332b(g)(5): 18 U.S.C. § 81; 18 U.S.C. § 930(c); 18 U.S.C. § 1362; 18 U.S.C. § 1363; 18 U.S.C. § 1992; 18 U.S.C. § 2339A; 18 U.S.C. § 2340A; 49 U.S.C. § 46504; 49 U.S.C. § 46505; and 49 U.S.C. § 60123(b). (B) Any of the following offenses: 18 U.S.C. § 32; 18 U.S.C. § 1993; and 18 U.S.C. § 2332a. Commentary Statutory Provisions: 18 U.S.C. §§ 371, 372, 2271. For additional statutory provision(s), see Appendix A (Statutory Index). Application Notes: 1. Certain attempts, conspiracies, and solicitations are expressly covered by other offense guidelines. Offense guidelines that expressly cover attempts include: §§2A2.1, 2A3.1, 2A3.2, 2A3.3, 2A3.4, 2A4.2, 2A5.1; §§2C1.1, 2C1.2; §§2D1.1, 2D1.2, 2D1.5, 2D1.6, 2D1.7, 2D1.8, 2D1.9, 2D1.10, 2D1.11, 2D1.12, 2D1.13, 2D2.1, 2D2.2, 2D3.1, 2D3.2; §2E5.1; §2M6.1; §2N1.1; §2Q1.4. Offense guidelines that expressly cover conspiracies include: §2A1.5; §§2D1.1, 2D1.2, 2D1.5, 2D1.6, 2D1.7, 2D1.8, 2D1.9, 2D1.10, 2D1.11, 2D1.12, 2D1.13, 2D2.1, 2D2.2, 2D3.1, 2D3.2; §2H1.1; §2M6.1; §2T1.9. §2X1.1 GUIDELINES MANUAL November 1, 2005 – 312 – Offense guidelines that expressly cover solicitations include: §2A1.5; §§2C1.1, 2C1.2; §2E5.1. 2. "Substantive offense," as used in this guideline, means the offense that the defendant was convicted of soliciting, attempting, or conspiring to commit. Under §2X1.1(a), the base offense level will be the same as that for the substantive offense. But the only specific offense characteristics from the guideline for the substantive offense that apply are those that are determined to have been specifically intended or actually occurred. Speculative specific offense characteristics will not be applied. For example, if two defendants are arrested during the conspiratorial stage of planning an armed bank robbery, the offense level ordinarily would not include aggravating factors regarding possible injury to others, hostage taking, discharge of a weapon, or obtaining a large sum of money, because such factors would be speculative. The offense level would simply reflect the level applicable to robbery of a financial institution, with the enhancement for possession of a weapon. If it was established that the defendants actually intended to physically restrain the teller, the specific offense characteristic for physical restraint would be added. In an attempted theft, the value of the items that the defendant attempted to steal would be considered. 3. If the substantive offense is not covered by a specific guideline, see §2X5.1 (Other Offenses). 4. In certain cases, the participants may have completed (or have been about to complete but for apprehension or interruption) all of the acts necessary for the successful completion of part, but not all, of the intended offense. In such cases, the offense level for the count (or group of closely related multiple counts) is whichever of the following is greater: the offense level for the intended offense minus 3 levels (under §2X1.1(b)(1), (b)(2), or (b)(3)(A)), or the offense level for the part of the offense for which the necessary acts were completed (or about to be completed but for apprehension or interruption). For example, where the intended offense was the theft of $800,000 but the participants completed (or were about to complete) only the acts necessary to steal $30,000, the offense level is the offense level for the theft of $800,000 minus 3 levels, or the offense level for the theft of $30,000, whichever is greater. In the case of multiple counts that are not closely related counts, whether the 3-level reduction under §2X1.1(b)(1), (b)(2), or (b)(3)(A) applies is determined separately for each count. Background: In most prosecutions for conspiracies or attempts, the substantive offense was substantially completed or was interrupted or prevented on the verge of completion by the intercession of law enforcement authorities or the victim. In such cases, no reduction of the offense level is warranted. Sometimes, however, the arrest occurs well before the defendant or any coconspirator has completed the acts necessary for the substantive offense. Under such circumstances, a reduction of 3 levels is provided under §2X1.1(b)(1) or (2). Historical Note: Effective November 1, 1987. Amended effective January 15, 1988 (see Appendix C, amendment 42); November 1, 1989 (see Appendix C, amendments 238-242); November 1, 1990 (see Appendix C, amendments 311 and 327); November 1, 1991 (see Appendix C, amendment 411); November 1, 1992 (see Appendix C, amendments 444 and 447); November 1, 1993 (see Appendix C, amendment 496); November 1, 2001 (see Appendix C, amendment 633); November 1, 2002 (see Appendix C, amendment 637); November 1, 2004 (see Appendix C, amendment 669). November 1, 2005 GUIDELINES MANUAL §2X5.1 – 313 – * * * * * 2. AIDING AND ABETTING §2X2.1. Aiding and Abetting The offense level is the same level as that for the underlying offense. Commentary Statutory Provisions: 18 U.S.C. §§ 2, 2339, 2339A, 2339C(a)(1)(A). Application Note: 1. Definition.—For purposes of this guideline,"underlying offense" means the offense the defendant is convicted of aiding or abetting, or in the case of a violation of 18 U.S.C. § 2339A or § 2339C(a)(1)(A), "underlying offense" means the offense the defendant is convicted of having materially supported or provided or collected funds for, prior to or during its commission. Background: A defendant convicted of aiding and abetting is punishable as a principal. 18 U.S.C. § 2. This section provides that aiding and abetting the commission of an offense has the same offense level as the underlying offense. An adjustment for a mitigating role (§3B1.2) may be applicable. Historical Note: Effective November 1, 1987. Amended effective November 1, 1990 (see Appendix C, amendment 359); November 1, 2002 (see Appendix C, amendment 637); November 1, 2003 (see Appendix C, amendment 655). * * * * * 3. ACCESSORY AFTER THE FACT §2X3.1. Accessory After the Fact (a) Base Offense Level: (1) 6 levels lower than the offense level for the underlying offense, except as provided in subdivisions (2) and (3). (2) The base offense level under this guideline shall be not less than level 4. (3) (A) The base offense level under this guideline shall be not more than level 30, except as provided in subdivision (B). §2X3.1 GUIDELINES MANUAL November 1, 2005 – 314 – (B) In any case in which the conduct is limited to harboring a fugitive, other than a case described in subdivision (C), the base offense level under this guideline shall be not more than level 20. (C) The limitation in subdivision (B) shall not apply in any case in which (i) the defendant is convicted under 18 U.S.C. § 2339 or § 2339A; or (ii) the conduct involved harboring a person who committed any offense listed in 18 U.S.C. § 2339 or § 2339A or who committed any offense involving or intending to promote a federal crime of terrorism, as defined in 18 U.S.C. § 2332b(g)(5). In such a case, the base offense level under this guideline shall be not more than level 30, as provided in subdivision (A). Commentary Statutory Provisions: 18 U.S.C. §§ 3, 757, 1071, 1072, 2339, 2339A , 2339C(c)(2)(A), (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)(A)). Application Notes: 1. Definition.—For purposes of this guideline, "underlying offense" means the offense as to which the defendant is convicted of being an accessory, or in the case of a violation of 18 U.S.C. § 2339A, "underlying offense" means the offense the defendant is convicted of having materially supported after its commission (i.e., in connection with the concealment of or an escape from that offense), or in the case of a violation of 18 U.S.C. § 2339C(c)(2)(A), "underlying offense" means the violation of 18 U.S.C. § 2339B with respect to which the material support or resources were concealed or disguised. Apply the base offense level plus any applicable specific offense characteristics that were known, or reasonably should have been known, by the defendant; see Application Note 10 of the Commentary to §1B1.3 (Relevant Conduct). 2. Application of Mitigating Role Adjustment.—The adjustment from §3B1.2 (Mitigating Role) normally would not apply because an adjustment for reduced culpability is incorporated in the base offense level. Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendment 243); November 1, 1991 (see Appendix C, amendment 380); November 1, 1993 (see Appendix C, amendment 496); November 1, 2002 (see Appendix C, amendment 637); November 1, 2003 (see Appendix C, amendment 655). November 1, 2005 GUIDELINES MANUAL §2X5.1 – 315 – * * * * * 4. MISPRISION OF FELONY §2X4.1. Misprision of Felony (a) Base Offense Level: 9 levels lower than the offense level for the underlying offense, but in no event less than 4, or more than 19. Commentary Statutory Provision: 18 U.S.C. § 4. Application Notes: 1. "Underlying offense" means the offense as to which the defendant is convicted of committing the misprision. Apply the base offense level plus any applicable specific offense characteristics that were known, or reasonably should have been known, by the defendant; see Application Note 10 of the Commentary to §1B1.3 (Relevant Conduct). 2. The adjustment from §3B1.2 (Mitigating Role) normally would not apply because an adjustment for reduced culpability is incorporated in the base offense level. Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendment 244); November 1, 1993 (see Appendix C, amendment 496). * * * * * 5. ALL OTHER OFFENSES §2X5.1. Other Offenses If the offense is a felony or Class A misdemeanor for which no guideline expressly has been promulgated, apply the most analogous offense guideline. If there is not a sufficiently analogous guideline, the provisions of 18 U.S.C. § 3553(b) shall control, except that any guidelines and policy statements that can be applied meaningfully in the absence of a Chapter Two offense guideline shall remain applicable. §2X5.1 GUIDELINES MANUAL November 1, 2005 – 316 – Commentary Application Note: 1. Guidelines and policy statements that can be applied meaningfully in the absence of a Chapter Two offense guideline include: §5B1.3 (Conditions of Probation); §5D1.1 (Imposition of a Term of Supervised Release); §5D1.2 (Term of Supervised Release); §5D1.3 (Conditions of Supervised Release); §5E1.1 (Restitution); §5E1.3 (Special Assessments); §5E1.4 (Forfeiture); Chapter Five, Part F (Sentencing Options); §5G1.3 (Imposition of a Sentence on a Defendant Subject to an Undischarged Term of Imprisonment); Chapter Five, Part H (Specific Offender Characteristics); Chapter Five, Part J (Relief from Disability); Chapter Five, Part K (Departures); Chapter Six, Part A (Sentencing Procedures); Chapter Six, Part B (Plea Agreements). Background: Many offenses, especially assimilative crimes, are not listed in the Statutory Index or in any of the lists of Statutory Provisions that follow each offense guideline. Nonetheless, the specific guidelines that have been promulgated cover the type of criminal behavior that most such offenses proscribe. The court is required to determine if there is a sufficiently analogous offense guideline, and, if so, to apply the guideline that is most analogous. Where there is no sufficiently analogous guideline, the provisions of 18 U.S.C. § 3553(b) control. That statute provides in relevant part as follows: "In the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in [18 U.S.C. § 3553] subsecti

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