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on (a)(2). In the absence of an applicable sentencing guideline in the case of an offense other than a petty offense, the court shall also have due regard for the relationship of the sentence imposed to sentences prescribed by guidelines applicable to similar offenses and offenders, and to the applicable policy statements of the Sentencing Commission." The sentencing guidelines apply to convictions under 18 U.S.C. § 13 (Assimilative Crimes Act) and 18 U.S.C. § 1153 (Indian Major Crimes Act); see 18 U.S.C. § 3551(a), as amended by section 1602 of Public Law 101-647. Historical Note: Effective November 1, 1987. Amended effective June 15, 1988 (see Appendix C, amendment 43); November 1, 1991 (see Appendix C, amendment 412); November 1, 1997 (see Appendix C, amendment 569). * * * * * 6. OFFENSES INVOLVING USE OF A MINOR IN A CRIME OF VIOLENCE Historical Note: Effective November 1, 2004 (see Appendix C, amendment 674). §2X6.1. Use of a Minor in a Crime of Violence (a) Base Offense Level: 4 plus the offense level from the guideline applicable to the underlying crime of violence. November 1, 2005 GUIDELINES MANUAL §2X6.1 – 317 – Commentary Statutory Provision: 18 U.S.C. § 25. Application Notes: 1. Definition.—For purposes of this guideline, "underlying crime of violence" means the crime of violence as to which the defendant is convicted of using a minor. 2. Inapplicability of §3B1.4.—Do not apply the adjustment under §3B1.4 (Using a Minor to Commit a Crime). 3. Multiple Counts.— (A) In a case in which the defendant is convicted under both 18 U.S.C. § 25 and the underlying crime of violence, the counts shall be grouped pursuant to subsection (a) of §3D1.2 (Groups of Closely Related Counts). (B) Multiple counts involving the use of a minor in a crime of violence shall not be grouped under §3D1.2. Historical Note: Effective November 1, 2004 (see Appendix C, amendment 674). §3A1.1 GUIDELINES MANUAL November 1, 2005 – 318 – CHAPTER THREE - ADJUSTMENTS PART A - VICTIM-RELATED ADJUSTMENTS Introductory Commentary The following adjustments are included in this Part because they may apply to a wide variety of offenses. Historical Note: Effective November 1, 1987. Amended effective November 1, 1990 (see Appendix C, amendment 344). §3A1.1. Hate Crime Motivation or Vulnerable Victim (a) If the finder of fact at trial or, in the case of a plea of guilty or nolo contendere, the court at sentencing determines beyond a reasonable doubt that the defendant intentionally selected any victim or any property as the object of the offense of conviction because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person, increase by 3 levels. (b) (1) If the defendant knew or should have known that a victim of the offense was a vulnerable victim, increase by 2 levels. (2) If (A) subdivision (1) applies; and (B) the offense involved a large number of vulnerable victims, increase the offense level determined under subdivision (1) by 2 additional levels. (c) Special Instruction (1) Subsection (a) shall not apply if an adjustment from §2H1.1(b)(1) applies. Commentary Application Notes: 1. Subsection (a) applies to offenses that are hate crimes. Note that special evidentiary requirements govern the application of this subsection. Do not apply subsection (a) on the basis of gender in the case of a sexual offense. In such cases, this factor is taken into account by the offense level of the Chapter Two offense guideline. Moreover, do not apply subsection (a) if an adjustment from §2H1.1(b)(1) applies. 2. For purposes of subsection (b), "vulnerable victim" means a person (A) who is a victim of the offense of conviction and any conduct for which the defendant is accountable under §1B1.3 (Relevant Conduct); and (B) who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct. November 1, 2005 GUIDELINES MANUAL §3A1.2 – 319 – Subsection (b) applies to offenses involving an unusually vulnerable victim in which the defendant knows or should have known of the victim’s unusual vulnerability. The adjustment would apply, for example, in a fraud case in which the defendant marketed an ineffective cancer cure or in a robbery in which the defendant selected a handicapped victim. But it would not apply in a case in which the defendant sold fraudulent securities by mail to the general public and one of the victims happened to be senile. Similarly, for example, a bank teller is not an unusually vulnerable victim solely by virtue of the teller’s position in a bank. Do not apply subsection (b) if the factor that makes the person a vulnerable victim is incorporated in the offense guideline. For example, if the offense guideline provides an enhancement for the age of the victim, this subsection would not be applied unless the victim was unusually vulnerable for reasons unrelated to age. 3. The adjustments from subsections (a) and (b) are to be applied cumulatively. Do not, however, apply subsection (b) in a case in which subsection (a) applies unless a victim of the offense was unusually vulnerable for reasons unrelated to race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation. 4. If an enhancement from subsection (b) applies and the defendant’s criminal history includes a prior sentence for an offense that involved the selection of a vulnerable victim, an upward departure may be warranted. Background: Subsection (a) reflects the directive to the Commission, contained in Section 280003 of the Violent Crime Control and Law Enforcement Act of 1994, to provide an enhancement of not less than three levels for an offense when the finder of fact at trial determines beyond a reasonable doubt that the defendant had a hate crime motivation (i.e., a primary motivation for the offense was the race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of the victim). To avoid unwarranted sentencing disparity based on the method of conviction, the Commission has broadened the application of this enhancement to include offenses that, in the case of a plea of guilty or nolo contendere, the court at sentencing determines are hate crimes. Subsection (b)(2) implements, in a broader form, the instruction to the Commission in section 6(c)(3) of Public Law 105-184. Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendment 245); November 1, 1990 (see Appendix C, amendment 344); November 1, 1992 (see Appendix C, amendment 454); November 1, 1995 (see Appendix C, amendment 521); November 1, 1997 (see Appendix C, amendment 564); November 1, 1998 (see Appendix C, amendment 587); November 1, 2000 (see Appendix C, amendment 595). §3A1.2. Official Victim (Apply the greatest): (a) If (1) the victim was (A) a government officer or employee; (B) a former government officer or employee; or (C) a member of the immediate family of a person described in subdivision (A) or (B); and (2) the offense of conviction was motivated by such status, increase by 3 levels. §3A1.2 GUIDELINES MANUAL November 1, 2005 – 320 – (b) If subsection (a)(1) and (2) apply, and the applicable Chapter Two guideline is from Chapter Two, Part A (Offenses Against the Person), increase by 6 levels. (c) If, in a manner creating a substantial risk of serious bodily injury, the defendant or a person for whose conduct the defendant is otherwise accountable— (1) knowing or having reasonable cause to believe that a person was a law enforcement officer, assaulted such officer during the course of the offense or immediate flight therefrom; or (2) knowing or having reasonable cause to believe that a person was a prison official, assaulted such official while the defendant (or a person for whose conduct the defendant is otherwise accountable) was in the custody or control of a prison or other correctional facility, increase by 6 levels. Commentary Application Notes: 1. Applicability to Certain Victims.—This guideline applies when specified individuals are victims of the offense. This guideline does not apply when the only victim is an organization, agency, or the government. 2. Nonapplicability in Case of Incorporation of Factor in Chapter Two.—Do not apply this adjustment if the offense guideline specifically incorporates this factor. The only offense guideline in Chapter Two that specifically incorporates this factor is §2A2.4 (Obstructing or Impeding Officers). 3. Application of Subsections (a) and (b).—"Motivated by such status", for purposes of subsections (a) and (b), means that the offense of conviction was motivated by the fact that the victim was a government officer or employee, or a member of the immediate family thereof. This adjustment would not apply, for example, where both the defendant and victim were employed by the same government agency and the offense was motivated by a personal dispute. This adjustment also would not apply in the case of a robbery of a postal employee because the offense guideline for robbery contains an enhancement (§2B3.1(a)) that takes such conduct into account. 4. Application of Subsection (c).— (A) In General.—Subsection (c) applies in circumstances tantamount to aggravated assault (i) against a law enforcement officer, committed in the course of, or in immediate flight following, another offense; or (ii) against a prison official, while the defendant (or a person for whose conduct the defendant is otherwise accountable) was in the custody or control of a prison or other correctional facility. While subsection (c) may apply in connection with a variety of offenses that are not by nature targeted against official November 1, 2005 GUIDELINES MANUAL §3A1.3 – 321 – victims, its applicability is limited to assaultive conduct against such official victims that is sufficiently serious to create at least a "substantial risk of serious bodily injury". (B) Definitions.—For purposes of subsection (c): "Custody or control" includes "non-secure custody", i.e., custody with no significant physical restraint. For example, a defendant is in the custody or control of a prison or other correctional facility if the defendant (i) is on a work detail outside the security perimeter of the prison or correctional facility; (ii) is physically away from the prison or correctional facility while on a pass or furlough; or (iii) is in custody at a community corrections center, community treatment center, "halfway house", or similar facility. The defendant also shall be deemed to be in the custody or control of a prison or other correctional facility while the defendant is in the status of having escaped from that prison or correctional facility. "Prison official" means any individual (including a director, officer, employee, independent contractor, or volunteer, but not including an inmate) authorized to act on behalf of a prison or correctional facility. For example, this enhancement would be applicable to any of the following: (i) an individual employed by a prison as a corrections officer; (ii) an individual employed by a prison as a work detail supervisor; and (iii) a nurse who, under contract, provides medical services to prisoners in a prison health facility. "Substantial risk of serious bodily injury" includes any more serious injury that was risked, as well as actual serious bodily injury (or more serious injury) if it occurs. 5. Upward Departure Provision.—If the official victim is an exceptionally high-level official, such as the President or the Vice President of the United States, an upward departure may be warranted due to the potential disruption of the governmental function. Historical Note: Effective November 1, 1987. Amended effective January 15, 1988 (see Appendix C, amendment 44); November 1, 1989 (see Appendix C, amendments 246-248); November 1, 1992 (see Appendix C, amendment 455); November 1, 2002 (see Appendix C, amendment 643); November 1, 2004 (see Appendix C, amendment 663). §3A1.3. Restraint of Victim If a victim was physically restrained in the course of the offense, increase by 2 levels. Commentary Application Notes: 1. "Physically restrained" is defined in the Commentary to §1B1.1 (Application Instructions). 2. Do not apply this adjustment where the offense guideline specifically incorporates this factor, or where the unlawful restraint of a victim is an element of the offense itself (e.g., this adjustment does not apply to offenses covered by §2A4.1 (Kidnapping, Abduction, Unlawful Restraint)). §3A1.4 GUIDELINES MANUAL November 1, 2005 – 322 – 3. If the restraint was sufficiently egregious, an upward departure may be warranted. See §5K2.4 (Abduction or Unlawful Restraint). Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendments 249 and 250); November 1, 1991 (see Appendix C, amendment 413). §3A1.4. Terrorism (a) If the offense is a felony that involved, or was intended to promote, a federal crime of terrorism, increase by 12 levels; but if the resulting offense level is less than level 32, increase to level 32. (b) In each such case, the defendant’s criminal history category from Chapter Four (Criminal History and Criminal Livelihood) shall be Category VI. Commentary Application Notes: 1. "Federal Crime of Terrorism" Defined.—For purposes of this guideline, "federal crime of terrorism" has the meaning given that term in 18 U.S.C. § 2332b(g)(5). 2. Harboring, Concealing, and Obstruction Offenses.—For purposes of this guideline, an offense that involved (A) harboring or concealing a terrorist who committed a federal crime of terrorism (such as an offense under 18 U.S.C. § 2339 or § 2339A); or (B) obstructing an investigation of a federal crime of terrorism, shall be considered to have involved, or to have been intended to promote, that federal crime of terrorism. 3. Computation of Criminal History Category.— Under subsection (b), if the defendant’s criminal history category as determined under Chapter Four (Criminal History and Criminal Livelihood) is less than Category VI, it shall be increased to Category VI. 4. Upward Departure Provision.—By the terms of the directive to the Commission in section 730 of the Antiterrorism and Effective Death Penalty Act of 1996, the adjustment provided by this guideline applies only to federal crimes of terrorism. However, there may be cases in which (A) the offense was calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct but the offense involved, or was intended to promote, an offense other than one of the offenses specifically enumerated in 18 U.S.C. § 2332b(g)(5)(B); or (B) the offense involved, or was intended to promote, one of the offenses specifically enumerated in 18 U.S.C. § 2332b(g)(5)(B), but the terrorist motive was to intimidate or coerce a civilian population, rather than to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct. In such cases an upward departure would be warranted, except that the sentence resulting from such a departure may not exceed the top of the guideline range that would have resulted if the adjustment under this guideline had been applied. Historical Note: Effective November 1, 1995 (see Appendix C, amendment 526). Amended effective November 1, 1996 (see Appendix C, amendment 539); November 1, 1997 (see Appendix C, amendment 565); November 1, 2002 (see Appendix C, amendment 637). November 1, 2005 GUIDELINES MANUAL §3A1.4 – 323 – §3B1.1 GUIDELINES MANUAL November 1, 2005 – 324 – PART B - ROLE IN THE OFFENSE Introductory Commentary This Part provides adjustments to the offense level based upon the role the defendant played in committing the offense. The determination of a defendant’s role in the offense is to be made on the basis of all conduct within the scope of §1B1.3 (Relevant Conduct), i.e., all conduct included under §1B1.3(a)(1)-(4), and not solely on the basis of elements and acts cited in the count of conviction. When an offense is committed by more than one participant, §3B1.1 or §3B1.2 (or neither) may apply. Section 3B1.3 may apply to offenses committed by any number of participants. Historical Note: Effective November 1, 1987. Amended effective November 1, 1990 (see Appendix C, amendment 345); November 1, 1992 (see Appendix C, amendment 456). §3B1.1. Aggravating Role Based on the defendant’s role in the offense, increase the offense level as follows: (a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels. (b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels. (c) If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels. Commentary Application Notes: 1.

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