18
USCS § 229 (2006)
§
229. Prohibited activities
(a)
Unlawful conduct. Except as provided in subsection (b),
it shall be unlawful for any person knowingly--
(1) to develop, produce, otherwise acquire, transfer
directly or indirectly, receive, stockpile, retain,
own, possess, or use, or threaten to use, any chemical
weapon; or
(2) to assist or induce, in any way, any person to violate
paragraph (1), or to attempt or conspire to violate
paragraph (1).
(b) Exempted agencies and persons.
(1) In general. Subsection (a) does not apply to the
retention, ownership, possession, transfer, or receipt
of a chemical weapon by a department, agency, or other
entity of the United States, or by a person described
in paragraph (2), pending destruction of the weapon.
(2) Exempted persons. A person referred to in paragraph
(1) is--
(A) any person, including a member of the Armed Forces
of the United States, who is authorized by law or by
an appropriate officer of the United States to retain,
own, possess, transfer, or receive the chemical weapon;
or
(B) in an emergency situation, any otherwise nonculpable
person if the person is attempting to destroy or seize
the weapon.
(c) Jurisdiction. Conduct prohibited by subsection (a)
is within the jurisdiction of the United States if the
prohibited conduct--
(1) takes place in the United States;
(2) takes place outside of the United States and is
committed by a national of the United States;
(3) is committed against a national of the United States
while the national is outside the United States; or
(4) is committed against any property that is owned,
leased, or used by the United States or by any department
or agency of the United States, whether the property
is within or outside the United States.
***
18
USCS § 2332 (2006)
§
2332. Criminal penalties
(a)
Homicide. Whoever kills a national of the United States,
while such national is outside the United States, shall,--
(1) if the killing is murder (as defined in section
1111(a) [18 USCS § 1111(a)]), be fined under this
title, punished by death or imprisonment for any term
of years or for life, or both;
(2) if the killing is a voluntary manslaughter as defined
in section 1112(a) of this title [18 USCS § 1112(a)],
be fined under this title or imprisoned not more than
ten years, or both; and
(3) if the killing is an involuntary manslaughter as
defined in section 1112(a) of this title [18 USCS §
1112(a)], be fined under this title or imprisoned not
more than three years, or both.
(b) Attempt or conspiracy with respect to homicide.
Whoever outside the United States attempts to kill,
or engages in a conspiracy to kill, a national of the
United States shall--
(1) in the case of an attempt to commit a killing that
is a murder as defined in this chapter [18 USCS §§
2331 et seq.], be fined under this title or imprisoned
not more than 20 years, or both; and
(2) in the case of a conspiracy by two or more persons
to commit a killing that is a murder as defined in section
1111(a) of this title [18 USCS § 1111(a)], if one
or more of such persons do any overt act to effect the
object of the conspiracy, be fined under this title
or imprisoned for any term of years or for life, or
both so fined and so imprisoned.
(c) Other conduct. Whoever outside the United States
engages in physical violence--
(1) with intent to cause serious bodily injury to a
national of the United States; or
(2) with the result that serious bodily injury is caused
to a national of the United States;
shall be fined under this title or imprisoned not more
that ten years, or both.
(d) Limitation on prosecution. No prosecution for any
offense described in this section shall be undertaken
by the United States except on written certification
of the Attorney General or the highest ranking subordinate
of the Attorney General with responsibility for criminal
prosecutions that, in the judgment of the certifying
official, such offense was intended to coerce, intimidate,
or retaliate against a government or a civilian population.
***
18
USCS § 2332a (2006)
§
2332a. Use of weapons of mass destruction
(a)
Offense against a national of the United States or within
the United States. A person who, without lawful authority,
uses, threatens, or attempts or conspires to use, a
weapon of mass destruction--
(1) against a national of the United States while such
national is outside of the United States;
(2) against any person or property within the United
States, and
(A) the mail or any facility of interstate or foreign
commerce is used in furtherance of the offense;
(B) such property is used in interstate or foreign commerce
or in an activity that affects interstate or foreign
commerce;
(C) any perpetrator travels in or causes another to
travel in interstate or foreign commerce in furtherance
of the offense; or
(D) the offense, or the results of the offense, affect
interstate or foreign commerce, or, in the case of a
threat, attempt, or conspiracy, would have affected
interstate or foreign commerce;
(3) against any property that is owned, leased or used
by the United States or by any department or agency
of the United States, whether the property is within
or outside of the United States; or
(4) against any property within the United States that
is owned, leased, or used by a foreign government,
shall be imprisoned for any term of years or for life,
and if death results, shall be punished by death or
imprisoned for any term of years or for life.
(b) Offense by national of the United State outside
of the United States. Any national of the United States
who, without lawful authority, uses, or threatens, attempts,
or conspires to use, a weapon of mass destruction outside
of the United States shall be imprisoned for any term
of years or for life, and if death results, shall be
punished by death, or by imprisonment for any term of
years or for life.
(c) Definitions. For purposes of this section--
(1) the term "national of the United States"
has the meaning given in section 101(a)(22) of the Immigration
and Nationality Act (8 U.S.C. 1101(a)(22));
(2) the term "weapon of mass destruction"
means--
(A) any destructive device as defined in section 921
of this title [18 USCS § 921];
(B) any weapon that is designed or intended to cause
death or serious bodily injury through the release,
dissemination, or impact of toxic or poisonous chemicals,
or their precursors;
(C) any weapon involving a biological agent, toxin,
or vector (as those terms are defined in section 178
of this title [18 USCS § 178]); or
(D) any weapon that is designed to release radiation
or radioactivity at a level dangerous to human life;
and
(3) the term "property" includes all real
and personal property.
***
18
USCS § 2332b (2006)
§
2332b. Acts of terrorism transcending national boundaries
[Caution: See prospective amendment note below.]
(a)
Prohibited acts.
(1) Offenses. Whoever, involving conduct transcending
national boundaries and in a circumstance described
in subsection (b)--
(A) kills, kidnaps, maims, commits an assault resulting
in serious bodily injury, or assaults with a dangerous
weapon any person within the United States; or
(B) creates a substantial risk of serious bodily injury
to any other person by destroying or damaging any structure,
conveyance, or other real or personal property within
the United States or by attempting or conspiring to
destroy or damage any structure, conveyance, or other
real or personal property within the United States;
in violation of the laws of any State, or the United
States, shall be punished as prescribed in subsection
(c).
(2) Treatment of threats, attempts and conspiracies.
Whoever threatens to commit an offense under paragraph
(1), or attempts or conspires to do so, shall be punished
under subsection (c).
(b) Jurisdictional bases.
(1) Circumstances. The circumstances referred to in
subsection (a) are--
(A) the mail or any facility of interstate or foreign
commerce is used in furtherance of the offense;
(B) the offense obstructs, delays, or affects interstate
or foreign commerce, or would have so obstructed, delayed,
or affected interstate or foreign commerce if the offense
had been consummated;
(C) the victim, or intended victim, is the United States
Government, a member of the uniformed services, or any
official, officer, employee, or agent of the legislative,
executive, or judicial branches, or of any department
or agency, of the United States;
(D) the structure, conveyance, or other real or personal
property is, in whole or in part, owned, possessed,
or leased to the United States, or any department or
agency of the United States;
(E) the offense is committed in the territorial sea
(including the airspace above and the seabed and subsoil
below, and artificial islands and fixed structures erected
thereon) of the United States; or
(F) the offense is committed within the special maritime
and territorial jurisdiction of the United States.
(2) Co-conspirators and accessories after the fact.
Jurisdiction shall exist over all principals and co-conspirators
of an offense under this section, and accessories after
the fact to any offense under this section, if at least
one of the circumstances described in subparagraphs
(A) through (F) of paragraph (1) is applicable to at
least one offender.
(c) Penalties.
(1) Penalties. Whoever violates this section shall be
punished--
(A) for a killing, or if death results to any person
from any other conduct prohibited by this section, by
death, or by imprisonment for any term of years or for
life;
(B) for kidnapping, by imprisonment for any term of
years or for life;
(C) for maiming, by imprisonment for not more than 35
years;
(D) for assault with a dangerous weapon or assault resulting
in serious bodily injury, by imprisonment for not more
than 30 years;
(E) for destroying or damaging any structure, conveyance,
or other real or personal property, by imprisonment
for not more than 25 years;
(F) for attempting or conspiring to commit an offense,
for any term of years up to the maximum punishment that
would have applied had the offense been completed; and
(G) for threatening to commit an offense under this
section, by imprisonment for not more than 10 years.
(2) Consecutive sentence. Notwithstanding any other
provision of law, the court shall not place on probation
any person convicted of a violation of this section;
nor shall the term of imprisonment imposed under this
section run concurrently with any other term of imprisonment.
(d) Proof requirements. The following shall apply to
prosecutions under this section:
(1) Knowledge. The prosecution is not required to prove
knowledge by any defendant of a jurisdictional base
alleged in the indictment.
(2) State law. In a prosecution under this section that
is based upon the adoption of State law, only the elements
of the offense under State law, and not any provisions
pertaining to criminal procedure or evidence, are adopted.
(e) Extraterritorial jurisdiction. There is extraterritorial
Federal jurisdiction--
(1) over any offense under subsection (a), including
any threat, attempt, or conspiracy to commit such offense;
and
(2) over conduct which, under section 3 [18 USCS §
3], renders any person an accessory after the fact to
an offense under subsection (a).
(f) Investigative authority. In addition to any other
investigative authority with respect to violations of
this title, the Attorney General shall have primary
investigative responsibility for all Federal crimes
of terrorism, and any violation of section 351(e), 844(e),
844(f)(1), 956(b), 1361, 1366(b), 1366(c), 1751(e),
2152, or 2156 of this title [18 USCS § 351(e),
844(e), 844(f)(1), 956(b), 1361, 1366(b), 1366(c), 1751(e),
2152, or 2156], and the Secretary of the Treasury shall
assist the Attorney General at the request of the Attorney
General. Nothing in this section shall be construed
to interfere with the authority of the United States
Secret Service under section 3056 [18 USCS § 3056].
(g) Definitions. As used in this section--
(1) the term "conduct transcending national boundaries"
means conduct occurring outside of the United States
in addition to the conduct occurring in the United States;
(2) the term "facility of interstate or foreign
commerce" has the meaning given that term in section
1958(b)(2) [18 USCS § 1958(b)(2)];
(3) the term "serious bodily injury" has the
meaning given that term in section 1365(g)(3) [18 USCS
§ 1365(g)(3)];
(4) the term "territorial sea of the United States"
means all waters extending seaward to 12 nautical miles
from the baselines of the United States, determined
in accordance with international law; and
(5) the term "Federal crime of terrorism"
means an offense that--
(A) is calculated to influence or affect the conduct
of government by intimidation or coercion, or to retaliate
against government conduct; and
(B) is a violation of--
(i) section 32 [18 USCS § 32] (relating to destruction
of aircraft or aircraft facilities), 37 [18 USCS §
37] (relating to violence at international airports),
81 [18 USCS § 81] (relating to arson within special
maritime and territorial jurisdiction), 175 or 175b
[18 USCS § 175 or 175(b)] (relating to biological
weapons), 175c (relating to variola virus), 229 [18
USCS § 229] (relating to chemical weapons), subsection
(a), (b), (c), or (d) of section 351 [18 USCS §
351] (relating to congressional, cabinet, and Supreme
Court assassination and kidnaping), 831 [18 USCS §
831] (relating to nuclear materials), 832 [18 USCS §
832] (relating to participation in nuclear and weapons
of mass destruction threats to the United States)[,]
842(m) or (n) [18 USCS § 842(m) or (n)] (relating
to plastic explosives), 844(f)(2) or (3) [18 USCS §
844(f)(2) or (3)] (relating to arson and bombing of
Government property risking or causing death), 844(i)
[18 USCS § 844(i)] (relating to arson and bombing
of property used in interstate commerce), 930(c) [18
USCS § 930(c)] (relating to killing or attempted
killing during an attack on a Federal facility with
a dangerous weapon), 956(a)(1) [18 USCS § 956(a)(1)]
(relating to conspiracy to murder, kidnap, or maim persons
abroad), 1030(a)(1) [18 USCS § 1030(a)(1)] (relating
to protection of computers), 1030(a)(5)(A)(i) [18 USCS
§ 1030(a)(5)(A)(i)] resulting in damage as defined
in 1030(a)(5)(B)(ii) through (v) [18 USCS § 1030(a)(5)(B)(ii)-(v)]
(relating to protection of computers), 1114 [18 USCS
§ 1114] (relating to killing or attempted killing
of officers and employees of the United States), 1116
[18 USCS § 1116] (relating to murder or manslaughter
of foreign officials, official guests, or internationally
protected persons), 1203 [18 USCS § 1203] (relating
to hostage taking), 1361 (relating to government property
or contracts), 1362 [18 USCS § 1362] (relating
to destruction of communication lines, stations, or
systems), 1363 [18 USCS § 1363] (relating to injury
to buildings or property within special maritime and
territorial jurisdiction of the United States), 1366(a)
[18 USCS § 1366(a)] (relating to destruction of
an energy facility), 1751(a), (b), (c), or (d) [18 USCS
§ 1751(a), (b), (c), or (d)] (relating to Presidential
and Presidential staff assassination and kidnaping),
1992 [18 USCS § 1992] (relating to wrecking trains),
1993 [18 USCS § 1993] (relating to terrorist attacks
and other acts of violence against mass transportation
systems), 2155 [18 USCS § 2155] (relating to destruction
of national defense materials, premises, or utilities),
2156 (relating to national defense material, premises,
or utilities), 2280 [18 USCS § 2280] (relating
to violence against maritime navigation), 2281 [18 USCS
§ 2281] (relating to violence against maritime
fixed platforms), 2332 [18 USCS § 2332] (relating
to certain homicides and other violence against United
States nationals occurring outside of the United States),
2332a [18 USCS § 2332a] (relating to use of weapons
of mass destruction), 2332b [18 USCS § 2332b] (relating
to acts of terrorism transcending national boundaries),
2332f [18 USCS § 2332f] (relating to bombing of
public places and facilities), 2332g [18 USCS §
2332g] (relating to missile systems designed to destroy
aircraft), 2332h [18 USCS § 2332h] (relating to
radiological dispersal devices), 2339 [18 USCS §
2339] (relating to harboring terrorists), 2339A [18
USCS § 2339A] (relating to providing material support
to terrorists), 2339B [18 USCS § 2339B] (relating
to providing material support to terrorist organizations),
2339C [18 USCS § 2339C] (relating to financing
of terrorism, or 2340A [18 USCS § 2340A] (relating
to torture) of this title;
(ii) sections 92 (relating to prohibitions governing
atomic weapons) or 236 (relating to sabotage of nuclear
facilities or fuel) of the Atomic Energy Act of 1954
(42 U.S.C. 2122 or 2284); or
(iii) section 46502 (relating to aircraft piracy), the
second sentence of section 46504 (relating to assault
on a flight crew with a dangerous weapon), section 46505(b)(3)
or (c) (relating to explosive or incendiary devices,
or endangerment of human life by means of weapons, on
aircraft), section 46506 if homicide or attempted homicide
is involved (relating to application of certain criminal
laws to acts on aircraft), or section 60123(b) (relating
to destruction of interstate gas or hazardous liquid
pipeline facility) of title 49.
***
18
USCS § 2332d (2006)
§
2332d. Financial transactions
(a)
Offense. Except as provided in regulations issued by
the Secretary of the Treasury, in consultation with
the Secretary of State, whoever, being a United States
person, knowing or having reasonable cause to know that
a country is designated under section 6(j) of the Export
Administration Act of 1979 (50 U.S.C. App. 2405) as
a country supporting international terrorism, engages
in a financial transaction with the government of that
country, shall be fined under this title, imprisoned
for not more than 10 years, or both.
(b) Definitions. As used in this section--
(1) the term "financial transaction" has the
same meaning as in section 1956(c)(4) [18 USCS §
1956(c)(4)]; and
(2) the term "United States person" means
any--
(A) United States citizen or national;
(B) permanent resident alien;
(C) juridical person organized under the laws of the
United States; or
(D) any person in the United States.
***
18
USCS § 2332f (2006)
§
2332f. Bombings of places of public use, government
facilities, public transportation systems and infrastructure
facilities
(a)
Offenses.
(1) In general. Whoever unlawfully delivers, places,
discharges, or detonates an explosive or other lethal
device in, into, or against a place of public use, a
state or government facility, a public transportation
system, or an infrastructure facility--
(A) with the intent to cause death or serious bodily
injury, or
(B) with the intent to cause extensive destruction of
such a place, facility, or system, where such destruction
results in or is likely to result in major economic
loss,
shall be punished as prescribed in subsection (c).
(2) Attempts and conspiracies. Whoever attempts or conspires
to commit an offense under paragraph (1) shall be punished
as prescribed in subsection (c).
(b) Jurisdiction. There is jurisdiction over the offenses
in subsection (a) if--
(1) the offense takes place in the United States and--
(A) the offense is committed against another state or
a government facility of such state, including its embassy
or other diplomatic or consular premises of that state;
(B) the offense is committed in an attempt to compel
another state or the United States to do or abstain
from doing any act;
(C) at the time the offense is committed, it is committed--
(i) on board a vessel flying the flag of another state;
(ii) on board an aircraft which is registered under
the laws of another state; or
(iii) on board an aircraft which is operated by the
government of another state;
(D) a perpetrator is found outside the United States;
(E) a perpetrator is a national of another state or
a stateless person; or
(F) a victim is a national of another state or a stateless
person;
(2) the offense takes place outside the United States
and--
(A) a perpetrator is a national of the United States
or is a stateless person whose habitual residence is
in the United States;
(B) a victim is a national of the United States;
(C) a perpetrator is found in the United States;
(D) the offense is committed in an attempt to compel
the United States to do or abstain from doing any act;
(E) the offense is committed against a state or government
facility of the United States, including an embassy
or other diplomatic or consular premises of the United
States;
(F) the offense is committed on board a vessel flying
the flag of the United States or an aircraft which is
registered under the laws of the United States at the
time the offense is committed; or
(G) the offense is committed on board an aircraft which
is operated by the United States.
(c) Penalties. Whoever violates this section shall be
punished as provided under section 2332a(a) of this
title [18 USCS § 2332a(a)].
(d) Exemptions to jurisdiction. This section does not
apply to--
(1) the activities of armed forces during an armed conflict,
as those terms are understood under the law of war,
which are governed by that law,
(2) activities undertaken by military forces of a state
in the exercise of their official duties; or
(3) offenses committed within the United States, where
the alleged offender and the victims are United States
citizens and the alleged offender is found in the United
States, or where jurisdiction is predicated solely on
the nationality of the victims or the alleged offender
and the offense has no substantial effect on interstate
or foreign commerce.
(e) Definitions. As used in this section, the term--
(1) "serious bodily injury" has the meaning
given that term in section 1365(g)(3) of this title
[18 USCS § 1365(g)(3)];
(2) "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));
(3) "state or government facility" includes
any permanent or temporary facility or conveyance that
is used or occupied by representatives of a state, members
of Government, the legislature or the judiciary or by
officials or employees of a state or any other public
authority or entity or by employees or officials of
an intergovernmental organization in connection with
their official duties;
(4) "intergovernmental organization" includes
international organization (as defined in section 1116(b)(5)
of this title [18 USCS § 1116(b)(5)]);
(5) "infrastructure facility" means any publicly
or privately owned facility providing or distributing
services for the benefit of the public, such as water,
sewage, energy, fuel, or communications;
(6) "place of public use" means those parts
of any building, land, street, waterway, or other location
that are accessible or open to members of the public,
whether continuously, periodically, or occasionally,
and encompasses any commercial, business, cultural,
historical, educational, religious, governmental, entertainment,
recreational, or similar place that is so accessible
or open to the public;
(7) "public transportation system" means all
facilities, conveyances, and instrumentalities, whether
publicly or privately owned, that are used in or for
publicly available services for the transportation of
persons or cargo;
(8) "explosive" has the meaning given in section
844(j) of this title [18 USCS § 844(j)] insofar
that it is designed, or has the capability, to cause
death, serious bodily injury, or substantial material
damage;
(9) "other lethal device" means any weapon
or device that is designed or has the capability to
cause death, serious bodily injury, or substantial damage
to property through the release, dissemination, or impact
of toxic chemicals, biological agents, or toxins (as
those terms are defined in section 178 of this title
[18 USCS § 178]) or radiation or radioactive material;
(10) "military forces of a state" means the
armed forces of a state which are organized, trained,
and equipped under its internal law for the primary
purpose of national defense or security, and persons
acting in support of those armed forces who are under
their formal command, control, and responsibility;
(11) "armed conflict" does not include internal
disturbances and tensions, such as riots, isolated and
sporadic acts of violence, and other acts of a similar
nature; and
(12) "state" has the same meaning as that
term has under international law, and includes all political
subdivisions thereof.
***
18
USCS § 2339A
§
2339A. Providing material support to terrorists [Caution:
See prospective amendment note below.]
(a)
Offense. Whoever provides material support or resources
or conceals or disguises the nature, location, source,
or ownership of material support or resources, knowing
or intending that they are to be used in preparation
for, or in carrying out, a violation of section 32,
37, 81, 175, 229, 351, 831, 842 (m) or (n), 844 (f)
or (i), 930(c), 956, 1114, 1116, 1203, 1361, 1362, 1363,
1366, 1751, 1992, 1993, 2155, 2156, 2280, 2281, 2332,
2332a, 2332b, 2332f, or 2340A of this title [18 USCS
§ 32, 37, 81, 175, 229, 351, 831, 842 (m) or (n),
844 (f) or (i), 930(c), 956, 1114, 1116, 1203, 1361,
1362, 1363, 1366, 1751, 1992, 1993, 2155, 2156, 2280,
2281, 2332, 2332a, 2332b, 2332f, or 2340A ], section
236 of the Atomic Energy Act of 1954 (42 U.S.C. 2284),
section 46502 or 60123(b) of title 49, or any offense
listed in section 2332b(g)(5)(B) [18 USCS § 2332b(g)(5)(B)]
(except for sections 2339A and 2339B [18 USCS §§
2339A and 2339B]) or in preparation for, or in carrying
out, the concealment of an escape from the commission
of any such violation, or attempts or conspires to do
such an act, shall be fined under this title, imprisoned
not more than 15 years, or both, and, if the death of
any person results, shall be imprisoned for any term
of years or for life. A violation of this section may
be prosecuted in any Federal judicial district in which
the underlying offense was committed, or in any other
Federal judicial district as provided by law.
(b) Definitions. As used in this section--
(1) the term "material support or resources"
means any property, tangible or intangible, or service,
including currency or monetary instruments or financial
securities, financial services, lodging, training, expert
advice or assistance, safehouses, false documentation
or identification, communications equipment, facilities,
weapons, lethal substances, explosives, personnel (1
or more individuals who may be or include oneself),
and transportation, except medicine or religious materials;
(2) the term "training" means instruction
or teaching designed to impart a specific skill, as
opposed to general knowledge; and
(3) the term "expert advice or assistance"
means advice or assistance derived from scientific,
technical or other specialized knowledge
***
18
USCS § 2339B (2006)
§
2339B. Providing material support or resources to designated
foreign terrorist organizations [Caution: See prospective
amendment note below.]
(a)
Prohibited activities.
(1) Unlawful conduct. Whoever knowingly provides material
support or resources to a foreign terrorist organization,
or attempts or conspires to do so, shall be fined under
this title or imprisoned not more than 15 years, or
both, and, if the death of any person results, shall
be imprisoned for any term of years or for life. To
violate this paragraph, a person must have knowledge
that the organization is a designated terrorist organization
(as defined in subsection (g)(6)), that the organization
has engaged or engages in terrorist activity (as defined
in section 212(a)(3)(B) of the Immigration and Nationality
Act [8 USCS § 1182(a)(3)(B)]), or that the organization
has engaged or engages in terrorism (as defined in section
140(d)(2) of the Foreign Relations Authorization Act,
Fiscal Years 1988 and 1989 [22 USCS § 2656f(d)(2)]).
(2) Financial institutions. Except as authorized by
the Secretary, any financial institution that becomes
aware that it has possession of, or control over, any
funds in which a foreign terrorist organization, or
its agent, has an interest, shall--
(A) retain possession of, or maintain control over,
such funds; and
(B) report to the Secretary the existence of such funds
in accordance with regulations issued by the Secretary.
(b) Civil penalty. Any financial institution that knowingly
fails to comply with subsection (a)(2) shall be subject
to a civil penalty in an amount that is the greater
of--
(A) $ 50,000 per violation; or
(B) twice the amount of which the financial institution
was required under subsection (a)(2) to retain possession
or control.
(c) Injunction. Whenever it appears to the Secretary
or the Attorney General that any person is engaged in,
or is about to engage in, any act that constitutes,
or would constitute, a violation of this section, the
Attorney General may initiate civil action in a district
court of the United States to enjoin such violation.
(d) Extraterritorial jurisdiction.
(1) In general. There is jurisdiction over an offense
under subsection (a) if--
(A) an offender is a national of the United States (as
defined in section 101(a)(22) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(22))) or an alien
lawfully admitted for permanent residence in the United
States (as defined in section 101(a)(20) of the Immigration
and Nationality Act (8 U.S.C. 1101(a)(20)));
(B) an offender is a stateless person whose habitual
residence is in the United States;
(C) after the conduct required for the offense occurs
an offender is brought into or found in the United States,
even if the conduct required for the offense occurs
outside the United States;
(D) the offense occurs in whole or in part within the
United States;
(E) the offense occurs in or affects interstate or foreign
commerce; or
(F) an offender aids or abets any person over whom jurisdiction
exists under this paragraph in committing an offense
under subsection (a) or conspires with any person over
whom jurisdiction exists under this paragraph to commit
an offense under subsection (a).
(2) Extraterritorial jurisdiction. There is extraterritorial
Federal jurisdiction over an offense under this section.
(e) Investigations.
(1) In general. The Attorney General shall conduct any
investigation of a possible violation of this section,
or of any license, order, or regulation issued pursuant
to this section.
(2) Coordination with the department of the treasury.
The Attorney General shall work in coordination with
the Secretary in investigations relating to--
(A) the compliance or noncompliance by a financial institution
with the requirements of subsection (a)(2); and
(B) civil penalty proceedings authorized under subsection
(b).
(3) Referral. Any evidence of a criminal violation of
this section arising in the course of an investigation
by the Secretary or any other Federal agency shall be
referred immediately to the Attorney General for further
investigation. The Attorney General shall timely notify
the Secretary of any action taken on referrals from
the Secretary, and may refer investigations to the Secretary
for remedial licensing or civil penalty action.
(f) Classified information in civil proceedings brought
by the United States.
(1) Discovery of classified information by defendants.
(A) Request by United States. In any civil proceeding
under this section, upon request made ex parte and in
writing by the United States, a court, upon a sufficient
showing, may authorize the United States to--
(i) redact specified items of classified information
from documents to be introduced into evidence or made
available to the defendant through discovery under the
Federal Rules of Civil Procedure;
(ii) substitute a summary of the information for such
classified documents; or
(iii) substitute a statement admitting relevant facts
that the classified information would tend to prove.
(B) Order granting request. If the court enters an order
granting a request under this paragraph, the entire
text of the documents to which the request relates shall
be sealed and preserved in the records of the court
to be made available to the appellate court in the event
of an appeal.
(C) Denial of request. If the court enters an order
denying a request of the United States under this paragraph,
the United States may take an immediate, interlocutory
appeal in accordance with paragraph (5). For purposes
of such an appeal, the entire text of the documents
to which the request relates, together with any transcripts
of arguments made ex parte to the court in connection
therewith, shall be maintained under seal and delivered
to the appellate court.
(2) Introduction of classified information; precautions
by court.
(A) Exhibits. To prevent unnecessary or inadvertent
disclosure of classified information in a civil proceeding
brought by the United States under this section, the
United States may petition the court ex parte to admit,
in lieu of classified writings, recordings, or photographs,
one or more of the following:
(i) Copies of items from which classified information
has been redacted.
(ii) Stipulations admitting relevant facts that specific
classified information would tend to prove.
(iii) A declassified summary of the specific classified
information.
(B) Determination by court. The court shall grant a
request under this paragraph if the court finds that
the redacted item, stipulation, or summary is sufficient
to allow the defendant to prepare a defense.
(3) Taking of trial testimony.
(A) Objection. During the examination of a witness in
any civil proceeding brought by the United States under
this subsection, the United States may object to any
question or line of inquiry that may require the witness
to disclose classified information not previously found
to be admissible.
(B) Action by court. In determining whether a response
is admissible, the court shall take precautions to guard
against the compromise of any classified information,
including--
(i) permitting the United States to provide the court,
ex parte, with a proffer of the witness's response to
the question or line of inquiry; and
(ii) requiring the defendant to provide the court with
a proffer of the nature of the information that the
defendant seeks to elicit.
(C) Obligation of defendant. In any civil proceeding
under this section, it shall be the defendant's obligation
to establish the relevance and materiality of any classified
information sought to be introduced.
(4) Appeal. If the court enters an order denying a request
of the United States under this subsection, the United
States may take an immediate interlocutory appeal in
accordance with paragraph (5).
(5) Interlocutory appeal.
(A) Subject of appeal. An interlocutory appeal by the
United States shall lie to a court of appeals from a
decision or order of a district court--
(i) authorizing the disclosure of classified information;
(ii) imposing sanctions for nondisclosure of classified
information; or
(iii) refusing a protective order sought by the United
States to prevent the disclosure of classified information.
(B) Expedited consideration.
(i) In general. An appeal taken pursuant to this paragraph,
either before or during trial, shall be expedited by
the court of appeals.
(ii) Appeals prior to trial. If an appeal is of an order
made prior to trial, an appeal shall be taken not later
than 10 days after the decision or order appealed from,
and the trial shall not commence until the appeal is
resolved.
(iii) Appeals during trial. If an appeal is taken during
trial, the trial court shall adjourn the trial until
the appeal is resolved, and the court of appeals--
(I) shall hear argument on such appeal not later than
4 days after the adjournment of the trial;
(II) may dispense with written briefs other than the
supporting materials previously submitted to the trial
court;
(III) shall render its decision not later than 4 days
after argument on appeal; and
(IV) may dispense with the issuance of a written opinion
in rendering its decision.
(C) Effect of ruling. An interlocutory appeal and decision
shall not affect the right of the defendant, in a subsequent
appeal from a final judgment, to claim as error reversal
by the trial court on remand of a ruling appealed from
during trial.
(6) Construction. Nothing in this subsection shall prevent
the United States from seeking protective orders or
asserting privileges ordinarily available to the United
States to protect against the disclosure of classified
information, including the invocation of the military
and State secrets privilege.
(g) Definitions. As used in this section--
(1) the term "classified information" has
the meaning given that term in section 1(a) of the Classified
Information Procedures Act (18 U.S.C. App.);
(2) the term "financial institution" has the
same meaning as in section 5312(a)(2) of title 31, United
States Code [31 USCS § 5312(a)(2)];
(3) the term "funds" includes coin or currency
of the United States or any other country, traveler's
checks, personal checks, bank checks, money orders,
stocks, bonds, debentures, drafts, letters of credit,
any other negotiable instrument, and any electronic
representation of any of the foregoing;
(4) the term "material support or resources"
has the same meaning given that term in section 2339A
[18 USCS § 2339A] (including the definitions of
"training" and "expert advice or assistance"
in that section);
(5) the term "Secretary" means the Secretary
of the Treasury; and
(6) the term "terrorist organization" means
an organization designated as a terrorist organization
under section 219 of the Immigration and Nationality
Act [8 USCS § 1189].
(h) Provision of personnel. No person may be prosecuted
under this section in connection with the term "personnel"
unless that person has knowingly provided, attempted
to provide, or conspired to provide a foreign terrorist
organization with 1 or more individuals (who may be
or include himself) to work under that terrorist organization's
direction or control or to organize, manage, supervise,
or otherwise direct the operation of that organization.
Individuals who act entirely independently of the foreign
terrorist organization to advance its goals or objectives
shall not be considered to be working under the foreign
terrorist organization's direction and control.
(i) Rule of construction. Nothing in this section shall
be construed or applied so as to abridge the exercise
of rights guaranteed under the First Amendment to the
Constitution of the United States.
(j) Exception. No person may be prosecuted under this
section in connection with the term "personnel",
"training", or "expert advice or assistance"
if the provision of that material support or resources
to a foreign terrorist organization was approved by
the Secretary of State with the concurrence of the Attorney
General. The Secretary of State may not approve the
provision of any material support that may be used to
carry out terrorist activity (as defined in section
212(a)(3)(B)(iii) of the Immigration and Nationality
Act [8 USCS § 1182(a)(3)(B)(iii)]).
***
18
USCS § 2339C (2006)
§
2339C. Prohibitions against the financing of terrorism
(a)
Offenses.
(1) In general. Whoever, in a circumstance described
in subsection (b), by any means, directly or indirectly,
unlawfully and willfully provides or collects funds
with the intention that such funds be used, or with
the knowledge that such funds are to be used, in full
or in part, in order to carry out--
(A) an act which constitutes an offense within the scope
of a treaty specified in subsection (e)(7), as implemented
by the United States, or
(B) any other act intended to cause death or serious
bodily injury to a civilian, or to any other person
not taking an active part in the hostilities in a situation
of armed conflict, when the purpose of such act, by
its nature or context, is to intimidate a population,
or to compel a government or an international organization
to do or to abstain from doing any act,
shall be punished as prescribed in subsection (d)(1).
(2) Attempts and conspiracies. Whoever attempts or conspires
to commit an offense under paragraph (1) shall be punished
as prescribed in subsection (d)(1).
(3) Relationship to predicate act. For an act to constitute
an offense set forth in this subsection, it shall not
be necessary that the funds were actually used to carry
out a predicate act.
(b) Jurisdiction. There is jurisdiction over the offenses
in subsection (a) in the following circumstances--
(1) the offense takes place in the United States and--
(A) a perpetrator was a national of another state or
a stateless person;
(B) on board a vessel flying the flag of another state
or an aircraft which is registered under the laws of
another state at the time the offense is committed;
(C) on board an aircraft which is operated by the government
of another state;
(D) a perpetrator is found outside the United States;
(E) was directed toward or resulted in the carrying
out of a predicate act against--
(i) a national of another state; or
(ii) another state or a government facility of such
state, including its embassy or other diplomatic or
consular premises of that state;
(F) was directed toward or resulted in the carrying
out of a predicate act committed in an attempt to compel
another state or international organization to do or
abstain from doing any act; or
(G) was directed toward or resulted in the carrying
out of a predicate act--
(i) outside the United States; or
(ii) within the United States, and either the offense
or the predicate act was conducted in, or the results
thereof affected, interstate or foreign commerce;
(2) the offense takes place outside the United States
and--
(A) a perpetrator is a national of the United States
or is a stateless person whose habitual residence is
in the United States;
(B) a perpetrator is found in the United States; or
(C) was directed toward or resulted in the carrying
out of a predicate act against--
(i) any property that is owned, leased, or used by the
United States or by any department or agency of the
United States, including an embassy or other diplomatic
or consular premises of the United States;
(ii) any person or property within the United States;
(iii) any national of the United States or the property
of such national; or
(iv) any property of any legal entity organized under
the laws of the United States, including any of its
States, districts, commonwealths, territories, or possessions;
(3) the offense is committed on board a vessel flying
the flag of the United States or an aircraft which is
registered under the laws of the United States at the
time the offense is committed;
(4) the offense is committed on board an aircraft which
is operated by the United States; or
(5) the offense was directed toward or resulted in the
carrying out of a predicate act committed in an attempt
to compel the United States to do or abstain from doing
any act.
(c) Concealment. Whoever--
(1) (A) is in the United States; or
(B) is outside the United States and is a national of
the United States or a legal entity organized under
the laws of the United States (including any of its
States, districts, commonwealths, territories, or possessions);
and
(2) knowingly conceals or disguises the nature, location,
source, ownership, or control of any material support
or resources, or any funds or proceeds of such funds--
(A) knowing or intending that the support or resources
are to be provided, or knowing that the support or resources
were provided, in violation of section 2339B of this
title [18 USCS § 2339B]; or
(B) knowing or intending that any such funds are to
be provided or collected, or knowing that the funds
were provided or collected, in violation of subsection
(a),
shall be punished as prescribed in subsection (d)(2).
(d) Penalties.
(1) Subsection (a). Whoever violates subsection (a)
shall be fined under this title, imprisoned for not
more than 20 years, or both.
(2) Subsection (c). Whoever violates subsection (c)
shall be fined under this title, imprisoned for not
more than 10 years, or both.
(e) Definitions. In this section--
(1) the term "funds" means assets of every
kind, whether tangible or intangible, movable or immovable,
however acquired, and legal documents or instruments
in any form, including electronic or digital, evidencing
title to, or interest in, such assets, including coin,
currency, bank credits, travelers checks, bank checks,
money orders, shares, securities, bonds, drafts, and
letters of credit;
(2) the term "government facility" means any
permanent or temporary facility or conveyance that is
used or occupied by representatives of a state, members
of a government, the legislature, or the judiciary,
or by officials or employees of a state or any other
public authority or entity or by employees or officials
of an intergovernmental organization in connection with
their official duties;
(3) the term "proceeds" means any funds derived
from or obtained, directly or indirectly, through the
commission of an offense set forth in subsection (a);
(4) the term "provides" includes giving, donating,
and transmitting;
(5) the term "collects" includes raising and
receiving;
(6) the term "predicate act" means any act
referred to in subparagraph (A) or (B) of subsection
(a)(1);
(7) the term "treaty" means--
(A) the Convention for the Suppression of Unlawful Seizure
of Aircraft, done at The Hague on December 16, 1970;
(B) the Convention for the Suppression of Unlawful Acts
against the Safety of Civil Aviation, done at Montreal
on September 23, 1971;
(C) the Convention on the Prevention and Punishment
of Crimes against Internationally Protected Persons,
including Diplomatic Agents, adopted by the General
Assembly of the United Nations on December 14, 1973;
(D) the International Convention against the Taking
of Hostages, adopted by the General Assembly of the
United Nations on December 17, 1979;
(E) the Convention on the Physical Protection of Nuclear
Material, adopted at Vienna on March 3, 1980;
(F) the Protocol for the Suppression of Unlawful Acts
of Violence at Airports Serving International Civil
Aviation, supplementary to the Convention for the Suppression
of Unlawful Acts against the Safety of Civil Aviation,
done at Montreal on February 24, 1988;
(G) the Convention for the Suppression of Unlawful Acts
against the Safety of Maritime Navigation, done at Rome
on March 10, 1988;
(H) the Protocol for the Suppression of Unlawful Acts
against the Safety of Fixed Platforms located on the
Continental Shelf, done at Rome on March 10, 1988; or
(I) the International Convention for the Suppression
of Terrorist Bombings, adopted by the General Assembly
of the United Nations on December 15, 1997;
(8) the term "intergovernmental organization"
includes international organizations;
(9) the term "international organization"
has the same meaning as in section 1116(b)(5) of this
title [18 USCS § 1116(b)(5)];
(10) the term "armed conflict" does not include
internal disturbances and tensions, such as riots, isolated
and sporadic acts of violence, and other acts of a similar
nature;
(11) the term "serious bodily injury" has
the same meaning as in section 1365(g)(3) of this title
[18 USCS § 1365(g)(3)];
(12) the term "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));
(13) the term "material support or resources"
has the same meaning given that term in section 2339B(g)(4)
of this title [18 USCS § 2339B(g)(4)]; and
(14) the term "state" has the same meaning
as that term has under international law, and includes
all political subdivisions thereof.
(f) Civil penalty. In addition to any other criminal,
civil, or administrative liability or penalty, any legal
entity located within the United States or organized
under the laws of the United States, including any of
the laws of its States, districts, commonwealths, territories,
or possessions, shall be liable to the United States
for the sum of at least $ 10,000, if a person responsible
for the management or control of that legal entity has,
in that capacity, committed an offense set forth in
subsection (a).
***
18
USCS § 3286 (2006)
§
3286. Extension of statute of limitation for certain
terrorism offenses
(a)
Eight-year limitation. Notwithstanding section 3282
[18 USCS § 3282], no person shall be prosecuted,
tried, or punished for any noncapital offense involving
a violation of any provision listed in section 2332b(g)(5)(B)
[18 USCS § 2332b(g)(5)(B)], or a violation of section
112, 351(e), 1361, or 1751(e) of this title [18 USCS
§ 112, 352(e), 1361, or 1751(e)], or section 46504,
46505, or 46506 of title 49, unless the indictment is
found or the information is instituted within 8 years
after the offense was committed. Notwithstanding the
preceding sentence, offenses listed in section 3295
[18 USCS § 3295] are subject to the statute of
limitations set forth in that section.
(b) No limitation. Notwithstanding any other law, an
indictment may be found or an information instituted
at any time without limitation for any offense listed
in section 2332b(g)(5)(B) [18 USCS § 2332b(g)(5)(B)],
if the commission of such offense resulted in, or created
a forseeable risk of, death or serious bodily injury
to another person.
***
18
USCS § 3583 (2006)
§
3583. Inclusion of a term of supervised release after
imprisonment
(a)
In general. The court, in imposing a sentence to a term
of imprisonment for a felony or a misdemeanor, may include
as a part of the sentence a requirement that the defendant
be placed on a term of supervised release after imprisonment,
except that the court shall include as a part of the
sentence a requirement that the defendant be placed
on a term of supervised release if such a term is required
by statute or if the defendant has been convicted for
the first time of a domestic violence crime as defined
in section 3561(b) [18 USCS § 3561(b)].
(b) Authorized terms of supervised release. Except as
otherwise provided, the authorized terms of supervised
release are--
(1) for a Class A or Class B felony, not more than five
years;
(2) for a Class C or Class D felony, not more than three
years; and
(3) for a Class E felony, or for a misdemeanor (other
than a petty offense), not more than one year.
(c) Factors to be considered in including a term of
supervised release. The court, in determining whether
to include a term of supervised release, and, if a term
of supervised release is to be included, in determining
the length of the term and the conditions of supervised
release, shall consider the factors set forth in section
3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4),
(a)(5), (a)(6), and (a)(7) [18 USCS § 3553(a)(1),
(a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6),
and (a)(7)].
(d) Conditions of supervised release. The court shall
order, as an explicit condition of supervised release,
that the defendant not commit another Federal, State,
or local crime during the term of supervision and that
the defendant not unlawfully possess a controlled substance.
The court shall order as an explicit condition of supervised
release for a defendant convicted for the first time
of a domestic violence crime as defined in section 3561(b)
[18 USCS § 3561(b)] that the defendant attend a
public, private, or private nonprofit offender rehabilitation
program that has been approved by the court, in consultation
with a State Coalition Against Domestic Violence or
other appropriate experts, if an approved program is
readily available within a 50-mile radius of the legal
residence of the defendant. The court shall order, as
an explicit condition of supervised release for a person
described in section 4042(c)(4) [18 USCS § 4042(c)(4)],
that the person report the address where the person
will reside and any subsequent change of residence to
the probation officer responsible for supervision, and
that the person register in any State where the person
resides, is employed, carries on a vocation, or is a
student (as such terms are defined under section 170101(a)(3)
of the Violent Crime Control and Law Enforcement Act
of 1994 [42 USCS § 14071(a)(3)]). The court shall
order, as an explicit condition of supervised release,
that the defendant cooperate in the collection of a
DNA sample from the defendant, if the collection of
such a sample is authorized pursuant to section 3 of
the DNA Analysis Backlog Elimination Act of 2000 [42
USCS § 14135a]. The court shall also order, as
an explicit condition of supervised release, that the
defendant refrain from any unlawful use of a controlled
substance and submit to a drug test within 15 days of
release on supervised release and at least 2 periodic
drug tests thereafter (as determined by the court) for
use of a controlled substance. The condition stated
in the preceding sentence may be ameliorated or suspended
by the court as provided in section 3563(a)(4) [18 USCS
§ 3563(a)(4)]. The results of a drug test administered
in accordance with the preceding subsection shall be
subject to confirmation only if the results are positive,
the defendant is subject to possible imprisonment for
such failure, and either the defendant denies the accuracy
of such test or there is some other reason to question
the results of the test. A drug test confirmation shall
be a urine drug test confirmed using gas chromatography/mass
spectrometry techniques or such test as the Director
of the Administrative Office of the United States Courts
after consultation with the Secretary of Health and
Human Services may determine to be of equivalent accuracy.
The court shall consider whether the availability of
appropriate substance abuse treatment programs, or an
individual's current or past participation in such programs,
warrants an exception in accordance with United States
Sentencing Commission guidelines from the rule of section
3583(g) [18 USCS § 3583(g)] when considering any
action against a defendant who fails a drug test. The
court may order, as a further condition of supervised
release, to the extent that such condition--
(1) is reasonably related to the factors set forth in
section 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D);
(2) involves no greater deprivation of liberty than
is reasonably necessary for the purposes set forth in
section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D) [18
USCS § 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D)];
and
(3) is consistent with any pertinent policy statements
issued by the Sentencing Commission pursuant to 28 U.S.C.
994(a);
any condition set forth as a discretionary condition
of probation in section 3563(b)(1) through (b)(10) and
(b)(12) through (b)(20) [18 USCS § 3563(b)(1)-(b)(10)
and (b)(12)-(b)(20)], and any other condition it considers
to be appropriate. If an alien defendant is subject
to deportation, the court may provide, as a condition
of supervised release, that he be deported and remain
outside the United States, and may order that he be
delivered to a duly authorized immigration official
for such deportation.
(e) Modification of conditions or revocation. The court
may, after considering the factors set forth in section
3553 (a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4),
(a)(5), (a)(6), and (a)(7) [18 USCS § 3553(a)(1),(a)(2)(B),
(a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7)]--
(1) terminate a term of supervised release and discharge
the defendant released at any time after the expiration
of one year of supervised release, pursuant to the provisions
of the Federal Rules of Criminal Procedure relating
to the modification of probation, if it is satisfied
that such action is warranted by the conduct of the
defendant released and the interest of justice;
(2) extend a term of supervised release if less than
the maximum authorized term was previously imposed,
and may modify, reduce, or enlarge the conditions of
supervised release, at any time prior to the expiration
or termination of the term of supervised release, pursuant
to the provisions of the Federal Rules of Criminal Procedure
relating to the modification of probation and the provisions
applicable to the initial setting of the terms and conditions
of post-release supervision;
(3) revoke a term of supervised release, and require
the defendant to serve in prison all or part of the
term of supervised release authorized by statute for
the offense that resulted in such term of supervised
release without credit for time previously served on
postrelease supervision, if the court, pursuant to the
Federal Rules of Criminal Procedure applicable to revocation
of probation or supervised release, finds by a preponderance
of the evidence that the defendant violated a condition
of supervised release, except that a defendant whose
term is revoked under this paragraph may not be required
to serve on any such revocation more than 5 years in
prison if the offense that resulted in the term of supervised
release is a class A felony, more than 3 years in prison
if such offense is a class B felony, more than 2 years
in prison if such offense is a class C or D felony,
or more than one year in any other case; or
(4) order the defendant to remain at his place of residence
during nonworking hours and, if the court so directs,
to have compliance monitored by telephone or electronic
signaling devices, except that an order under this paragraph
may be imposed only as an alternative to incarceration.
(f) Written statement of conditions. The court shall
direct that the probation officer provide the defendant
with a written statement that sets forth all the conditions
to which the term of supervised release is subject,
and that is sufficiently clear and specific to serve
as a guide for the defendant's conduct and for such
supervision as is required.
(g) Mandatory revocation for possession of controlled
substance or firearm or for refusal to comply with drug
testing. If the defendant--
(1) possesses a controlled substance in violation of
the condition set forth in subsection (d);
(2) possesses a firearm, as such term is defined in
section 921 of this title [18 USCS § 921], in violation
of Federal law, or otherwise violates a condition of
supervised release prohibiting the defendant from possessing
a firearm;
(3) refuses to comply with drug testing imposed as a
condition of supervised release; or
(4) as a part of drug testing, tests positive for illegal
controlled substances more than 3 times over the course
of 1 year;
the court shall revoke the term of supervised release
and require the defendant to serve a term of imprisonment
not to exceed the maximum term of imprisonment authorized
under subsection (e)(3).
(h) Supervised release following revocation. When a
term of supervised release is revoked and the defendant
is required to serve a term of imprisonment, the court
may include a requirement that the defendant be placed
on a term of supervised release after imprisonment.
The length of such a term of supervised release shall
not exceed the term of supervised release authorized
by statute for the offense that resulted in the original
term of supervised release, less any term of imprisonment
that was imposed upon revocation of supervised release.
(i) Delayed revocation. The power of the court to revoke
a term of supervised release for violation of a condition
of supervised release, and to order the defendant to
serve a term of imprisonment and, subject to the limitations
in subsection (h), a further term of supervised release,
extends beyond the expiration of the term of supervised
release for any period reasonably necessary for the
adjudication of matters arising before its expiration
if, before its expiration, a warrant or summons has
been issued on the basis of an allegation of such a
violation.
(j) Supervised release terms for terrorism predicates.
Notwithstanding subsection (b), the authorized term
of supervised release for any offense listed in section
2332b(g)(5)(B) [18 USCS § 2332b(g)(5)(B)], the
commission of which resulted in, or created a foreseeable
risk of, death or serious bodily injury to another person,
is any term of years or life.
(k) Notwithstanding subsection (b), the authorized term
of supervised release for any offense under section
1201 [18 USCS § 1201] involving a minor victim,
and for any offense under section 1591, 2241, 2242,
2244(a)(1), 2244(a)(2), 2251, 2251A, 2252, 2252A, 2260,
2421, 2422, 2423, or 2425 [18 USCS § 1591, 2241,
2242, 2244(a)(1), 2244(a)(2), 2251, 2251A, 2252, 2252A,
2260, 2421, 2422, 2423, or 2425], is any term of years
or life.
***
18
USCS Appx C, Amend 637
Amendment
637.
The Commentary to § 2A1.1 captioned "Statutory
Provisions" is amended by inserting ", 2332b(a)(1),
2340A" after "2118(c)(2)".
The Commentary to § 2A1.2 captioned "Statutory
Provision" is amended by striking "Provision"
and inserting "Provisions"; by inserting "§
" before "1111"; and by inserting ",
2332b(a)(1), 2340A" after "1111".
The Commentary to § 2A1.3 captioned "Statutory
Provision" is amended by striking "Provision"
and inserting "Provisions"; by inserting "§
" before "1112"; and by inserting ",
2332b(a)(1)" after "1112".
The Commentary to § 2A1.4 captioned "Statutory
Provision" is amended by striking "Provision"
and inserting "Provisions"; by inserting "§
" before "1112"; and by inserting ",
2332b(a)(1)" after "1112".
The Commentary to § 2A2.1 captioned "Statutory
Provisions" is amended by inserting ", 1993(a)(6)"
after "1751(c)".
The Commentary to § 2A2.2 captioned "Statutory
Provisions" is amended by inserting ", 1993(a)(6),
2332b(a)(1), 2340A" after "1751(e)".
The Commentary to § 2A4.1 captioned "Statutory
Provisions" is amended by inserting ", 2340A"
after "1751(b)".
Chapter Two, Part A is amended in the heading of Subpart
5 by adding at the end "AND OFFENSES AGAINST MASS
TRANSPORTATION SYSTEMS".
Section 2A5.2 is amended in the heading by adding at
the end "; Interference with Dispatch, Operation,
or Maintenance of Mass Transportation Vehicle or Ferry".
Section 2A5.2(a)(1) is amended by striking "the
aircraft and passengers; or" and inserting ":
(A) an airport or an aircraft; or (B) a mass transportation
facility, a mass transportation vehicle, or a ferry;".
Section 2A5.2(a)(2) is amended by striking "the
aircraft and passengers; or" and inserting ":
(A) an airport or an aircraft; or (B) a mass transportation
facility, a mass transportation vehicle, or a ferry;".
Section 2A5.2 is amended by inserting after subsection
(a) the following:
"(b)
Specific Offense Characteristic
(1)
If (A) subsection (a)(1) or (a)(2) applies; and (B)(i)
a firearm was discharged, increase by 5 levels; (ii)
a dangerous weapon was otherwise used, increase by 4
levels; or (iii) a dangerous weapon was brandished or
its use was threatened, increase by 3 levels. If the
resulting offense level is less than level 24, increase
to level 24.
(c)
Cross References
(1)
If death resulted, apply the most analogous guideline
from Chapter Two, Part A, Subpart 1 (Homicide), if the
resulting offense level is greater than that determined
above.
(2)
If the offense involved possession of, or a threat to
use (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.".
The Commentary to § 2A5.2 captioned "Statutory
Provisions" is amended by inserting "18 U.S.C.
§ 1993(a)(4), (5), (6), (b);" before "49
U.S.C. §§ "; and by inserting "46503,"
after "46308,".
Section 2A5.2 is amended by striking the Commentary
captioned "Background" as follows:
"Background: An adjustment is provided where the
defendant intentionally or recklessly endangered the
safety of the aircraft and passengers. The offense of
carrying a weapon aboard an aircraft, which is proscribed
by 49 U.S.C. § 46505, is covered in § 2K1.5
(Possessing Dangerous Weapons or Materials While Boarding
or Aboard an Aircraft).",
and inserting the following:
"Application Note:
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).
'Brandished', 'dangerous weapon', 'firearm', and 'otherwise
used' have the meaning given those terms in Application
Note 1 of the Commentary to § 1B1.1 (Application
Instructions).
'Mass transportation' has the meaning given that term
in 18 U.S.C. § 1993(c)(5).".
Section 2A6.1 is amended by redesignating subsection
(b)(4) as subsection (b)(5); by striking "and (3)"
in subsection (b)(5), as redesignated by this amendment,
and inserting "(3), and (4)"; and by inserting
after subsection (b)(3) the following:
"(4)
If the offense resulted in (A) substantial disruption
of public, governmental, or business functions or services;
or (B) a substantial expenditure of funds to clean up,
decontaminate, or otherwise respond to the offense,
increase by 4 levels.".
The Commentary to § 2A6.1 captioned "Statutory
Provisions" is amended by inserting "32(c),
35(b)," before "871"; by inserting ",
1993(a)(7), (8), 2332b(a)(2)" after "879";
and by inserting "; 49 U.S.C. § 46507"
after "(C)-(E)".
The Commentary to § 2A6.1 captioned "Application
Notes" is amended by striking Note 1 as follows:
"1.
The Commission recognizes that this offense includes
a particularly wide range of conduct and that it is
not possible to include all of the potentially relevant
circumstances in the offense level. Factors not incorporated
in the guideline may be considered by the court in determining
whether a departure from the guidelines is warranted.
See Chapter Five, Part K (Departures).";
and by redesignating Note 2 as Note 1.
The Commentary to § 2A6.1 captioned "Application
Notes" is amended in Note 1, as redesignated by
this amendment, by inserting "Scope of Conduct
to Be Considered." before "In determining";
and by striking the last two paragraphs as follows:
"For purposes of Chapter Three, Part D (Multiple
Counts), multiple counts involving making a threatening
or harassing communication to the same victim are grouped
together under § 3D1.2 (Groups of Closely Related
Counts). Multiple counts involving different victims
are not to be grouped under § 3D1.2.
If the conduct involved substantially more than two
threatening communications to the same victim or a prolonged
period of making harassing communications to the same
victim, an upward departure may be warranted.".
The Commentary to § 2A6.1 captioned "Application
Notes" is amended by adding at the end the following:
"2.
Grouping. For purposes of Chapter Three, Part D (Multiple
Counts), multiple counts involving making a threatening
or harassing communication to the same victim are grouped
together under § 3D1.2 (Groups of Closely Related
Counts). Multiple counts involving different victims
are not to be grouped under § 3D1.2.
3.
Departure Provisions.
(A)
In General. The Commission recognizes that offenses
covered by this guideline may include a particularly
wide range of conduct and that it is not possible to
include all of the potentially relevant circumstances
in the offense level. Factors not incorporated in the
guideline may be considered by the court in determining
whether a departure from the guidelines is warranted.
See Chapter Five, Part K (Departures).
(B)
Multiple Threats or Victims. If the offense involved
substantially more than two threatening communications
to the same victim or a prolonged period of making harassing
communications to the same victim, or if the offense
involved multiple victims, an upward departure may be
warranted.".
Section 2B1.1 is amended by striking subsection (d)
as follows:
"(d)
Special Instruction
(1)
If the defendant is convicted under 18 U.S.C. §
1030(a)(4) or (5), the minimum guideline sentence, notwithstanding
any other adjustment, shall be six months' imprisonment.".
The Commentary to § 2B1.1 captioned "Statutory
Provisions" is amended by inserting "1992,
1993(a)(1), (a)(4)," after "1832,"; by
inserting ", 2332b(a)(1)" after "2317";
and by inserting ", 60123(b)" after "46317(a)".
The Commentary to § 2B1.1 captioned "Background"
is amended by striking the last paragraph as follows:
"Subsection (d) implements the instruction to the
Commission in section 805(c) of Public Law 104-132.".
Section 2B2.3(b)(1) is amended by inserting "(A)"
after "occurred"; by striking the comma after
"government facility" and inserting ";
(B) at"; and by striking ", or" after
"energy facility" and inserting "; (C)
on a vessel or aircraft of the United States; (D) in
a secured area of an airport; or (E) at".
Section 2B2.3 is amended by inserting after subsection
(b) the following:
"(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.".
The Commentary to § 2B2.3 captioned "Statutory
Provisions" is amended by inserting "§
" before "1030"; and by inserting ",
1036" after "(a)(3)".
The Commentary to § 2B2.3 captioned "Application
Notes" is amended in Note 1 by striking "For
purposes of this guideline--" and inserting the
following:
"Definitions. For purposes of this guideline:
'Airport' has the meaning given that term in section
47102 of title 49, United States Code.
'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.".
Section 2K1.4(a)(1)(B) is amended by inserting ",
an airport, an aircraft, a mass transportation facility,
a mass transportation vehicle, or a ferry" after
"dwelling".
Section 2K1.4(a)(2) is amended by striking "a dwelling;
or (C) endangered a dwelling, or a structure other than
a dwelling" and inserting "(i) a dwelling,
or (ii) an airport, an aircraft, a mass transportation
facility, a mass transportation vehicle, or a ferry;
or (C) endangered (i) a dwelling, (ii) a structure other
than a dwelling, or (iii) an aircraft, a mass transportation
vehicle, or a ferry".
The Commentary to § 2K1.4 captioned "Statutory
Provisions" is amended by inserting "1992,
1993(a)(1), (a)(2), (a)(3), (b)," after "1855,";
and by inserting ", 2332a; 49 U.S.C. § 60123(b)"
after "2275".
The Commentary to § 2K1.4 captioned "Application
Notes" is amended by striking Note 1 as follows:
"1.
If bodily injury resulted, an upward departure may be
warranted. See Chapter Five, Part K (Departures).",
and inserting the following:
"1.
Definitions. For purposes of this guideline:
'Explosives' includes any explosive, explosive material,
or destructive device.
'National cemetery' means a cemetery (A) established
under section 2400 of title 38, United States Code;
or (B) under the jurisdiction of the Secretary of the
Army, the Secretary of the Navy, the Secretary of the
Air Force, or the Secretary of the Interior.
'Mass transportation' has the meaning given that term
in 18 U.S.C. § 1993(c)(5).".
The Commentary to § 2K1.4 captioned "Application
Notes" is amended in Note 2 by inserting "Risk
of Death or Serious Bodily Injury." before "Creating".
The Commentary to § 2K1.4 captioned "Application
Notes" is amended by striking Notes 3 and 4 as
follows:
"3.
'Explosives,' as used in the title of this guideline,
includes any explosive, explosive material, or destructive
device.
4.
'National cemetery' means a cemetery (A) established
under section 2400 of title 38, United States Code;
or (B) under the jurisdiction of the Secretary of the
Army, the Secretary of the Navy, the Secretary of the
Air Force, or the Secretary of the Interior.",
and inserting the following:
"3.
Upward Departure Provision. If bodily injury resulted,
an upward departure may be warranted. See Chapter Five,
Part K (Departures).".
The Commentary to § 2L1.2 captioned "Application
Notes" is amended by inserting at the end of subdivision
(B) of Note 1 the following:
"(vi)
'Terrorism offense' means any offense involving, or
intending to promote, a 'federal crime of terrorism',
as that term is defined in 18 U.S.C. § 2332b(g)(5).".
The Commentary to § 2M2.1 captioned "Statutory
Provisions" is amended by inserting "; 49
U.S.C. § 60123(b)" after "2284".
The Commentary to § 2M2.3 captioned "Statutory
Provisions" is amended by inserting "; 49
U.S.C. § 60123(b)" after "2284".
Chapter Two, Part M is amended in the heading of Subpart
5 by adding at the end ", AND PROVIDING MATERIAL
SUPPORT TO DESIGNATED FOREIGN TERRORIST ORGANIZATIONS".
Section 2M5.1 is amended in the heading by adding at
the end "; Financial Transactions with Countries
Supporting International Terrorism".
Section 2M5.1(a)(1) is amended by inserting "(A)"
after "26, if"; and by inserting "; or
(B) the offense involved a financial transaction with
a country supporting international terrorism" after
"evaded".
The Commentary to § 2M5.1 captioned "Statutory
Provisions" is amended by inserting "18 U.S.C.
§ 2332d;" before "50 U.S.C.".
The Commentary to § 2M5.1 captioned "Application
Notes" is amended by adding at the end the following:
"4.
For purposes of subsection (a)(1)(B), 'a country supporting
international terrorism' means a country designated
under section 6(j) of the Export Administration Act
(50 U.S.C. App. 2405).".
Chapter Two, Part M, Subpart 5 is amended by adding
at the end the following:
"§ 2M5.3.
Providing Material Support or Resources to Designated
Foreign Terrorist Organizations
(a)
Base Offense Level: 26
(b)
Specific Offense Characteristic
(1)
If the offense involved the provision of (A) dangerous
weapons; (B) firearms; (C) explosives; or (D) funds
with knowledge or reason to believe such funds would
be used to purchase any of the items described in subdivisions
(A) through (C), 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.
(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 Provision: 18 U.S.C. § 2339B.
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 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.".
Section 2M6.1(a)(2) is amended by striking "and"
and inserting a comma; by inserting ", (a)(4),
and (a)(5)" after "(a)(3)"; and by striking
"or".
Section 2M6.1(a) is amended by redesignating subdivision
(3) as subdivision (5); by inserting after subdivision
(2) the following:
"(3)
22, if the defendant is convicted under 18 U.S.C. §
175b;
(4)
20, if the defendant is convicted under 18 U.S.C. §
175(b); or";
and by striking "by-product" in subdivision
(5), as redesignated by this amendment, and inserting
"byproduct".
Section 2M6.1(b)(1) is amended by striking "or
(a)(3)" and inserting ", (a)(4), or (a)(5)".
Section 2M6.1(b)(2) is amended by inserting ",
(a)(3), or (a)(4)" after "(a)(2)".
Section 2M6.1(b)(3) is amended by striking "or"
after "(a)(2)" and inserting a comma; and
by inserting ", (a)(4), or (a)(5)" after "(a)(3)".
The Commentary to § 2M6.1 captioned "Statutory
Provisions" is amended by inserting "175b,"
after "175,"; and by inserting "1993(a)(2),
(3), (b)," after "842(p)(2),".
The Commentary to § 2M6.1 captioned "Application
Notes" is amended in Note 1 by inserting after
"18 U.S.C. § 831(f)(1)." the following
paragraph:
"'Restricted person' has the meaning given that
term in 18 U.S.C. § 175b(b)(2).".
Section 2S1.3 is amended in the heading by adding at
the end "; Bulk Cash Smuggling; Establishing or
Maintaining Prohibited Accounts".
Section 2S1.3 is amended by striking subsection (a)
as follows:
"(a)
Base Offense Level: 6 plus the number of offense levels
from the table in § 2B1.1 (Theft, Property Destruction,
and Fraud) corresponding to the value of the funds.",
and inserting the following:
"(a)
Base Offense Level:
(1)
8, if the defendant was convicted under 31 U.S.C. §
5318 or § 5318A; or
(2)
6 plus the number of offense levels from the table in
§ 2B1.1 (Theft, Property Destruction, and Fraud)
corresponding to the value of the funds, if subsection
(a)(1) does not apply.".
Section 2S1.3(b)(1) is amended by inserting "(A)"
after "If"; and by inserting "; or (B)
the offense involved bulk cash smuggling" after
"promote unlawful activity".
Section 2S1.3(b) is amended by redesignating subdivision
(2) as subdivision (3); and by inserting after subdivision
(1) the following:
"(2)
If the defendant (A) was convicted of an offense under
subchapter II of chapter 53 of title 31, United States
Code; and (B) committed the offense as part of a pattern
of unlawful activity involving more than $ 100,000 in
a 12-month period, increase by 2 levels.".
Section 2S1.3(b)(3), as redesignated by this amendment,
is amended by striking "subsection (b)(1) does
not apply" and inserting "subsection (a)(2)
applies and subsections (b)(1) and (b)(2) do not apply".
The Commentary to § 2S1.3 captioned "Statutory
Provisions" is amended by inserting "§
" before "7203"; by striking "§
" before "7206"; by inserting "5318,
5318A(b), 5322," after "5316,"; and by
inserting ", 5331, 5332" after "5326".
The Commentary to § 2S1.3 captioned "Application
Note" is amended by striking "Note" and
inserting "Notes"; by inserting "Definition
of 'Value of the Funds'." before "For purposes
of this guideline" in Note 1; and by adding after
Note 1 the following:
"2.
Bulk Cash Smuggling. For purposes of subsection (b)(1)(B),
'bulk cash smuggling' means (A) knowingly concealing,
with the intent to evade a currency reporting requirement
under 31 U.S.C. § 5316, more than $ 10,000 in currency
or other monetary instruments; and (B) transporting
or transferring (or attempting to transport or transfer)
such currency or monetary instruments into or outside
of the United States. 'United States' has the meaning
given that term in Application Note 1 of the Commentary
to § 2B5.1 (Offenses Involving Counterfeit Bearer
Obligations of the United States).
3.
Enhancement for Pattern of Unlawful Activity. For purposes
of subsection (b)(2), 'pattern of unlawful activity'
means at least two separate occasions of unlawful activity
involving a total amount of more than $ 100,000 in a
12-month period, without regard to whether any such
occasion occurred during the course of the offense or
resulted in a conviction for the conduct that occurred
on that occasion.".
The Commentary to § 2S1.3 captioned "Background"
is amended by striking "The" and inserting
"Some of the"; and by adding at the end the
following:
"This guideline also covers offenses under 31 U.S.C.
§§ 5318 and 5318A, pertaining to records,
reporting and identification requirements, prohibited
accounts involving certain foreign jurisdictions, foreign
institutions, and foreign banks, and other types of
transactions and types of accounts.".
Section 2X1.1 is amended by adding after subsection
(c) the following:
"(d)
Special Instruction
(1)
Subsection (b) shall not apply to any of the following
offenses, if such offense involved, or was intended
to promote, a federal crime of terrorism as defined
in 18 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).".
The Commentary to § 2X2.1 captioned "Statutory
Provision" is amended by striking the following:
"Statutory Provision: 18 U.S.C. § 2.",
and inserting:
"Statutory Provisions: 18 U.S.C. §§ 2,
2339, 2339A.".
The Commentary to § 2X2.1 captioned "Application
Note" is amended in Note 1 by striking "'Underlying"
and inserting "Definition. For purposes of this
guideline, 'underlying"; and by inserting ",
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 prior to
or during its commission" after "abetting".
Section 2X3.1(a) is amended by striking "Provided,
that where" and inserting "However, in a case
in which"; and by striking "offense level
shall" and inserting "base offense level under
this subsection shall".
The Commentary to § 2X3.1 captioned "Statutory
Provisions" is amended by inserting ", 2339,
2339A" after "1072".
The Commentary to § 2X3.1 captioned "Application
Notes" is amended in Note 1 by striking "'Underlying"
and inserting "Definition. For purposes of this
guideline, 'underlying"; and by inserting ",
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)" after "accessory".
The Commentary to § 2X3.1 captioned "Application
Notes" is amended in Note 2 by inserting "Application
of Mitigating Role Adjustment." before "The
adjustment".
The Commentary to § 3A1.4 captioned "Application
Notes" is amended by striking Note 1 as follows:
"1.
Subsection (a) increases the offense level if the offense
involved, or was intended to promote, a federal crime
of terrorism. 'Federal crime of terrorism' is defined
at 18 U.S.C. § 2332b(g).",
and inserting the following:
"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).".
The Commentary to § 3A1.4 captioned "Application
Notes" is amended by redesignating Note 2 as Note
3; and by inserting after Note 1 the following:
"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.".
The Commentary to § 3A1.4 captioned "Application
Notes" is amended in Note 3, as redesignated by
this amendment, by inserting "Computation of Criminal
History Category." before "Under subsection
(b)".
The Commentary to § 3A1.4 captioned "Application
Notes" is amended by adding at the end the following:
"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.".
The Commentary to § 3C1.1 captioned "Application
Notes" is amended in Note 4 by striking the period
at the end of subdivision (i) and inserting a semicolon;
and by inserting after subdivision (i) the following:
"(j)
failing to comply with a restraining order or injunction
issued pursuant to 21 U.S.C. § 853(e) or with an
order to repatriate property issued pursuant to 21 U.S.C.
§ 853(p).".
Section 5D1.2(a) is amended by adding at the end the
following:
"Notwithstanding subdivisions (1) through (3),
the length of the term of supervised release for any
offense listed in 18 U.S.C. § 2332b(g)(5)(B) the
commission of which resulted in, or created a foreseeable
risk of, death or serious bodily injury to another person
(A) shall be not less than the minimum term of years
specified for that class of offense under subdivisions
(1) through (3); and (B) may be up to life.".
Appendix A (Statutory Index) is amended by inserting
after the line referenced to 18 U.S.C. § 175 the
following new line: "18 U.S.C. § 175b 2M6.1";
by inserting after the line referenced to 18 U.S.C.
§ 1992 the following new lines:
"18 U.S.C. § 1993(a)(1) 2B1.1, 2K1.4
18 U.S.C. § 1993(a)(2) 2K1.4, 2M6.1
18 U.S.C. § 1993(a)(3) 2K1.4, 2M6.1
18 U.S.C. § 1993(a)(4) 2A5.2, 2B1.1
18 U.S.C. § 1993(a)(5) 2A5.2
18 U.S.C. § 1993(a)(6) 2A2.1, 2A2.2, 2A5.2
18 U.S.C. § 1993(a)(7) 2A6.1
18 U.S.C. § 1993(a)(8) 2A6.1
18 U.S.C. § 1993(b) 2A5.2, 2K1.4, 2M6.1";
by inserting after the line referenced to 18 U.S.C.
§ 2332a the following new lines:
"18 U.S.C. § 2332b(a)(1) 2A1.1, 2A1.2, 2A1.3,
2A1.4, 2A2.1, 2A2.2, 2A4.1, 2B1.1
18 U.S.C. § 2332b(a)(2) 2A6.1
18 U.S.C. § 2332d 2M5.1
18 U.S.C. § 2339 2X2.1, 2X3.1
18 U.S.C. § 2339A 2X2.1, 2X3.1
18 U.S.C. § 2339B 2M5.3
18 U.S.C. § 2340A 2A1.1, 2A1.2, 2A2.1, 2A2.2, 2A4.1";
by inserting after the line referenced to 30 U.S.C.
§ 1463 the following new line:
"31 U.S.C. § 5311 note (section 329 of the
USA PATRIOT Act of 2001) 2C1.1";
by inserting after the line referenced to 31 U.S.C.
§ 5316 the following new lines:
"31 U.S.C. § 5318 2S1.3
31 U.S.C. § 5318A(b) 2S1.3";
by inserting after the line referenced to 31 U.S.C.
§ 5326 the following new lines:
"31 U.S.C. § 5331 2S1.3
31 U.S.C. § 5332 2S1.3";
by inserting after the line referenced to 49 U.S.C.
§ 46502(a),(b) the following new line:
"49 U.S.C. § 46503 2A5.2"; and
by inserting after the line referenced to 49 U.S.C.
§ 46506 the following new lines:
"49 U.S.C. § 46507 2A6.1
49 U.S.C. § 60123(b) 2B1.1, 2K1.4, 2M2.1, 2M2.3".
Reason for Amendment: This amendment is a six-part amendment
that responds to the Uniting and Strengthening America
by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism (USA PATRIOT Act) Act of 2001,
Pub. L. 107-56 (the "Act").
Among its many provisions are appropriately severe penalties
for offenses against mass transportation systems and
interstate gas or hazardous liquid pipelines. The amendment
also increases sentences for threats that substantially
disrupt governmental or business operations or result
in costly cleanup measures. It expands the guideline
coverage of offenses involving bioterrorism, and it
creates a new guideline for providing material support
to foreign terrorist organizations. It punishes attempts
and conspiracies to commit terrorism as if the offense
had been carried out and adds an invited upward departure
to the guidelines' terrorism enhancement for appropriate
cases. Finally, it authorizes a term of supervised release
up to life for a defendant convicted of a federal crime
of terrorism that resulted in substantial risk of death
or serious bodily injury to another person.
First, this amendment makes a number of changes to Appendix
A (Statutory Index) and several guidelines in Chapter
Two (Offense Conduct) in order to incorporate several
new predicate offenses to federal crimes of terrorism.
This amendment addresses section 801 of the Act, which
added 18 U.S.C. § 1993, generally pertaining to
offenses against mass transportation systems and facilities.
The amendment also addresses 49 U.S.C. § 46507
pertaining to false information and threats, that heretofore
was not listed in the Statutory Index, as well as the
new offense at 49 U.S.C. § 46503, pertaining to
interference with security screening personnel.
Specifically, the amendment makes a number of changes
to § 2A5.2 (Interference with Flight Crew Member
or Flight Attendant) and the guidelines in Chapter Two,
Part A, Subpart 2 (Assault). First, this amendment references
violations of 18 U.S.C. § 1993(a)(4), (a)(5), (a)(6),
and (b) and 49 U.S.C. § 46503 to § 2A5.2 because
that guideline presently covers other similar offenses
and because the guideline's alternative base offense
levels cover offenses that involve reckless or intentional
endangerment, conduct which is an element of some of
these new offenses.
In order to take into account aggravating conduct which
may occur in such offenses, the amendment adds a specific
offense characteristic for use of a weapon, borrowing
language from § 2A2.2 (Aggravated Assault). The
specific offense characteristic provides a graduated
enhancement with a minimum offense level of level 24
at § 2A5.2(b)(1) for the involvement of a dangerous
weapon in the offense. This enhancement addresses concerns
that the current base offense level of level 18 (in
§ 2A5.2(a)(2)) for reckless endangerment may be
inadequate in situations involving a dangerous weapon
and reckless disregard for the safety of human life.
The minimum offense level of level 24 mirrors the offense
level that applies for conduct amounting to reckless
endangerment under subsection (b)(1) of § 2K1.5
(Possessing Dangerous Weapons or Materials While Boarding
or Aboard an Aircraft). A cross reference to the appropriate
homicide guideline also is provided for offenses in
which death results; death as an aggravating circumstance
is included in 18 U.S.C. § 1993(b).
The amendment also amends § 2A6.1 (Threatening
or Harassing Communications) to incorporate offenses
against mass transportation systems under 18 U.S.C.
§ 1993(a)(7) and (a)(8) and 49 U.S.C. § 46507
and provides corresponding references in the Statutory
Index. These three provisions require the same type
of threatening conduct or conveyance of false information
as two other offenses referenced to § 2A6.1, specifically
18 U.S.C. §§ 32(c) and 35(b), which cover
aircraft, railroads, and shipping, rather than mass
transportation systems. Additionally, a specific offense
characteristic is added if the offense resulted in a
substantial disruption of public, governmental, or business
functions or services, or a substantial expenditure
of funds to clean up, decontaminate, or otherwise respond
to the offense. This enhancement recognizes that a terrorist
threat usually will be directed at a large number of
individuals, governmental buildings or operations, or
infrastructure. Unless such a terrorist threat is immediately
dismissed as not credible, the conduct may result in
significant disruption and response costs. This specific
offense characteristic is the same as that contained
in subsection (b)(3) of § 2M6.1 (Nuclear, Biological,
and Chemical Weapons, and Other Weapons of Mass Destruction).
An invited upward departure provision is added for situations
in which the offense involved multiple victims, a circumstance
which might occur in the context of these new offenses.
This amendment also amends § 2K1.4 (Arson; Property
Damage by Use of Explosives) and § 2B1.1 (Theft,
Property Destruction, and Fraud) to cover violations
of 18 U.S.C. § 1993(a)(1) and (b). Offenses under
18 U.S.C. § 1993(a)(1) are similar to another offense
referenced to these guidelines, 18 U.S.C. § 32(a)(1),
with respect to the intent standard required to commit
the offense, offense conduct, and resulting harm. The
amendment references violations of 18 U.S.C. §
1993(a)(2), (a)(3), and (b) to §§ 2K1.4 and
2M6.1. These offenses encompass a wide range of conduct.
For example, a violation of 18 U.S.C. § 1993(a)(3)
may occur if the defendant sets fire to a garage or
places a biological agent or toxin for use as a destructive
substance near an aircraft and this likely endangered
the safety of that aircraft.
The amendment expands § 2M6.1 to cover 18 U.S.C.
§§ 175(b) and 175b, two new offenses created
by section 817 of the Act, involving possession of biological
agents, toxins, and delivery systems. Section 2M6.1
is the most appropriate guideline for these offenses
because they involve the knowing possession of certain
biological substances. A base offense level of level
20 is provided for 18 U.S.C. § 175(b) offenses,
the same base offense level as is currently provided
for threat cases under that guideline. The current two
level increase for particularly dangerous biological
agents would be available for the most serious substances.
A base offense level of level 22 is provided for offenses
under 18 U.S.C. § 175b, which forbids certain restricted
persons (defined in the statute) to ship or transport
in interstate or foreign commerce, or possess in or
affecting commerce, any biological agent or toxin, or
to receive any biological agent or toxin that has been
shipped or transported in interstate or foreign commerce,
if the biological agent or toxin is listed as a select
agent (e.g., ebola, anthrax). Because this offense already
takes into account the serious nature of a select agent,
the amendment treats these offenses separately from
offenses under 18 U.S.C. § 175(b), with a higher
base offense level and an instruction that the enhancement
for select biological agents does not apply.
The amendment also amends the Statutory Index to reference
18 U.S.C. § 2339 to §§ 2X2.1 (Aiding
and Abetting) and 2X3.1 (Accessory After the Fact).
This offense prohibits harboring or concealing any person
who the defendant knows, or has reasonable grounds to
believe, has committed or is about to commit, one of
several enumerated offenses. Second, this amendment
provides Statutory Index references, as well as modifications
to various Chapter Two guidelines, for a number of offenses
that, prior to enactment of the Act, were enumerated
in 18 U.S.C. § 2332b(g)(5) as predicate offenses
for federal crimes of terrorism but were not explicitly
incorporated in the guidelines.
Specifically, the amendment references 18 U.S.C. §
2332b(a)(1) offenses to §§ 2A1.1 (First Degree
Murder), 2A1.2 (Second Degree Murder), 2A1.3 (Voluntary
Manslaughter), 2A1.4 (Involuntary Manslaughter), 2A2.1
(Assault with Intent to Commit Murder; Attempted Murder),
2A2.2 (Aggravated Assault), and 2A4.1 (Kidnapping, Abduction,
Unlawful Restraint), inasmuch as 18 U.S.C. § 2332b
offenses are analogous to offenses currently referenced
to those guidelines.
The amendment also provides a Statutory Index reference
to § 2A6.1 (Threatening or Harassing Communications)
for cases under 18 U.S.C. § 2332b(a)(2), which
prohibits threats, attempts and conspiracies to commit
an offense under 18 U.S.C. § 2332b(a)(1). This
amendment also creates a new guideline, at § 2M5.3
(Providing Material Support or Resources to Designated
Foreign Terrorist Organizations), for offenses under
18 U.S.C. § 2339B, which prohibits the provision
of material support or resources to a foreign terrorist
organization. The amendment references offenses under
18 U.S.C. § 2339A to §§ 2X2.1 and 2X3.1.
Section 2339A offenses concern providing material support
to terrorists that the defendant knows or intends will
be used in preparation for, or in carrying out, certain
specified predicate offenses. Thus, the essence of 18
U.S.C. § 2339A offenses is akin to aiding and abetting
or accessory after the fact offenses, which warrants
reference to §§ 2X2.1 and 2X3.1. In contrast,
18 U.S.C. § 2339B offenses are referenced to a
new guideline, § 2M5.3, primarily because they
are not statutorily linked to the commission of any
specified predicate offenses. To account for the variety
of ways in which such offenses may be committed, the
proposed new guideline provides two specific offense
characteristics that enhance the sentence for cases
in which the material support involved dangerous weapons
and in which the material support involved nuclear,
biological, or chemical weapons.
The amendment references torture offenses under 18 U.S.C.
§ 2340A to §§ 2A1.1, 2A1.2, 2A2.1, 2A2.2,
and 2A4.1. The amendment also references 49 U.S.C. §
60123(b), pertaining to damaging or destroying an interstate
gas or hazardous liquid pipeline facility, to §§
2B1.1, 2K1.4, 2M2.1 (Destruction of, or Production of
Defective, War Material, Premises, or Utilities), and
2M2.3 (Destruction of, or Production of Defective, National
Defense Material, Premises, or Utilities).
Third, the amendment responds to section 811 of the
Act, which amended a number of offenses to ensure that
attempts and conspiracies to commit any of those offenses
subject the offender to the same penalties prescribed
for the object offense. This amendment provides a special
instruction in § 2X1.1 (Attempt, Solicitation,
or Conspiracy) that the three level reduction in §
2X1.1(b) does not apply to these offenses when committed
for a terrorist objective.
Fourth, the amendment adds an encouraged, structured
upward departure in § 3A1.4 (Terrorism) for offenses
that involve terrorism but do not otherwise qualify
as offenses that involved or were intended to promote
"federal crimes of terrorism" for purposes
of the terrorism adjustment in § 3A1.4. The amendment
provides an upward departure, rather than a specified
guideline adjustment, because of the expected infrequency
of these terrorism offenses and to provide the court
with a viable tool to account for the harm involved
during the commission of these offenses on a case-by-case
basis. In addition, the structured upward departure
provision makes it possible to impose punishment equal
in severity to that which would be imposed if the §
3A1.4 adjustment actually applied.
The amendment adds an application note to § 3A1.4
regarding harboring and concealing offenses to clarify
that § 3A1.4 may apply in the case of offenses
that occurred after the commission of the federal crime
of terrorism (e.g., a case in which the defendant, in
violation of 18 U.S.C. § 2339A, concealed an individual
who had committed a federal crime of terrorism).
Fifth, the amendment amends § 2S1.3 (Structuring
Transactions to Evade Reporting Requirements; Failure
to Report Cash or Monetary Transactions; Failure to
File Currency and Monetary Instrument Report; Knowingly
Filing False Reports) to incorporate new money laundering
provisions created by the Act.
Specifically, the amendment provides an alternative
base offense level of level 8 in § 2S1.3(a) in
order to incorporate offenses under 31 U.S.C. §§
5318 and 5318A. The base offense level of level 8 recognizes
the heightened due diligence requirements placed on
financial institutions with respect to payable-through
accounts, correspondent accounts, and shell banks.
The amendment also amends § 2S1.3(b)(1), relating
to the promotion of unlawful activity, to provide an
alternative prong if the offense involved bulk cash
smuggling. This amendment addresses 31 U.S.C. §
5332, added by section 371 of the Act, which prohibits
concealing, with intent to evade a currency reporting
requirement under 31 U.S.C. § 5316, more than $
10,000 in currency or other monetary instruments and
transporting or transferring such currency or monetary
instruments into or outside of the United States. Findings
set forth in that section of the Act indicate that bulk
cash smuggling typically involves the promotion of unlawful
activity.
The amendment also provides an enhancement in §
2S1.3(b) to give effect to the enhanced penalty provisions
under 31 U.S.C. § 5322(b) for offenses under subchapter
II of chapter 53 of title 31, United Stated Code, if
such offenses were committed as part of a pattern of
unlawful activity involving more than $ 100,000 in a
12-month period.
Sixth, the amendment addresses a number of miscellaneous
issues related to terrorism. Specifically, it provides
a definition of terrorism for purposes of the prior
conviction enhancement in § 2L1.2 (Unlawfully Entering
or Remaining in the United States). For consistency,
the definition is the same as that found in the current
Chapter Three terrorism adjustment.
It also amends § 3C1.1 (Obstructing or Impeding
the Administration of Justice), in response to section
319(d) of the Act, which amends the Controlled Substances
Act at 21 U.S.C. § 853(e) to require a defendant
to repatriate any property that may be seized and forfeited
and to deposit that property in the registry of the
court or with the United States Marshals Service or
the Secretary of the Treasury. Section 319(d) of the
Act also states that the failure to comply with a protective
order and an order to repatriate property "may
also result in an enhancement of the sentence of the
defendant under the obstruction of justice provision
of the Federal Sentencing Guidelines." Accordingly,
the amendment adds Application Note 4(j) to § 3C1.1
to provide that failure to comply with an order issued
pursuant to 21 U.S.C. § 835(e) is an example of
the types of conduct to which the adjustment applies.
It also amends § 5D1.2 (Term of Supervised Release),
in response to section 812 of the Act, which authorizes
a term of supervised release of any term of years or
life for a defendant convicted of a federal crime of
terrorism the commission of which resulted in, or created
a foreseeable risk of, death or serious bodily injury
to another person.
It also amends § 2B1.1 to delete the special instruction
pertaining to the imposition of not less than six months'
imprisonment for a defendant convicted under 18 U.S.C.
§ 1030(a)(4) or (5). This amendment is in response
to section 814(f) of the Act, which directed the Commission
to amend the guidelines "to ensure that any individual
convicted of a violation of section 1030 of title 18,
United States Code, can be subjected to appropriate
penalties, without regard to any mandatory minimum term
of imprisonment."
It also adds a reference in the Statutory Index to §
2C1.1 (Offering, Giving, Soliciting, or Receiving a
Bribe; Extortion Under Color of Official Right), for
the new offense created by section 329 of the Act, which
prohibits a federal official or employee, in connection
with administration of the money laundering provisions
of the Act, to corruptly demand, seek, receive, accept,
or agree to receive or accept anything of value in return
for being influenced in the performance of an official
act, being influenced to commit or aid in committing
any fraud on the United States, or being induced to
do or omit to do any act in violation of official duties.
It also amends § 2M5.1 (Evasion of Export Controls)
to incorporate 18 U.S.C. § 2332d, which prohibits
a United States person, knowing or having reasonable
cause to know that a country is designated under the
Export Administration Act as a country supporting international
terrorism, to engage in a financial transaction with
the government of that country. The amendment provides
a base offense level of level 26 for these offenses.
Finally, it amends § 2B2.3 (Trespass) to incorporate
the offense under 18 U.S.C. § 1036. That offense,
added by section 2 of the Enhanced Federal Security
Act of 2000, Pub. L. 106-547, prohibits, by fraud or
pretense, the entering or attempting to enter any real
property, vessel, or aircraft of the United States,
or secure area of an airport. The amendment amends the
existing two level enhancement in § 2B2.3(b)(1)
to provide an additional ground for application of the
enhancement if the trespass involved a vessel, aircraft
of the United States, or secure area of an airport.
It also adds a cross reference to § 2X1.1 if the
offense involved the intent to commit another felony.
***
18
USCS Appx C, Amend 654
Amendment
654.
Section 2B1.1(b) is amended by inserting after subsection
(b)(12) the following:
"(13)
(A)
(Apply the greatest) If the defendant was convicted
of an offense under:
(i)
18 U.S.C. § 1030, and the offense involved (I)
a computer system used to maintain or operate a critical
infrastructure, or used by or for a government entity
in furtherance of the administration of justice, national
defense, or national security; or (II) an intent to
obtain personal information, increase by 2 levels.
(ii)
18 U.S.C. § 1030(a)(5)(A)(i), increase by 4 levels.
(iii)
18 U.S.C. § 1030, and the offense caused a substantial
disruption of a critical infrastructure, increase by
6 levels.
(B) If subdivision (A)(iii) applies, and the offense
level is less than level 24, increase to level 24.".
The Commentary to § 2B1.1 captioned "Statutory
Provisions" is amended by inserting ", 2701"
after "2332b(a)(1)".
The Commentary to § 2B1.1 captioned "Application
Notes" is amended in Note 3(A)(v), as redesignated
by Amendment 653, by striking subdivision (III) as follows:
"(III)
Protected Computer Cases. In the case of an offense
involving unlawfully accessing, or exceeding authorized
access to, a "protected computer" as defined
in 18 U.S.C. § 1030(e)(2), actual loss includes
the following pecuniary harm, regardless of whether
such pecuniary harm was reasonably foreseeable: reasonable
costs to the victim of conducting a damage assessment,
and restoring the system and data to their condition
prior to the offense, and any lost revenue due to interruption
of service.",
and inserting the following:
"(III)
Offenses Under 18 U.S.C. § 1030. In the case of
an offense under 18 U.S.C. § 1030, actual loss
includes the following pecuniary harm, regardless of
whether such pecuniary harm was reasonably foreseeable:
any reasonable cost to any victim, including the cost
of responding to an offense, conducting a damage assessment,
and restoring the data, program, system, or information
to its condition prior to the offense, and any revenue
lost, cost incurred, or other damages incurred because
of interruption of service.".
The Commentary to § 2B1.1 captioned "Application
Notes" is amended by inserting before Note 13,
as redesignated by Amendment 653, the following:
"12.
Application of Subsection (b)(13).
(A)
Definitions. For purposes of subsection (b)(13):
'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).
'Personal information' means sensitive or private information
(including such information in the possession of a third
party), including (i) medical records; (ii) wills; (iii)
diaries; (iv) private correspondence, including e-mail;
(v) financial records; (vi) photographs of a sensitive
or private nature; or (vii) similar information.
(B)
Subsection (b)(13)(iii). If the same conduct that forms
the basis for an enhancement under subsection (b)(13)(iii)
is the only conduct that forms the basis for an enhancement
under subsection (b)(12)(B), do not apply the enhancement
under subsection (b)(12)(B).".
The Commentary to § 2B1.1 captioned "Application
Notes" is amended in Note 18, as redesignated by
Amendment 653, by adding at the end of subdivision (A)(ii)
the following:
"An upward departure would be warranted, for example,
in an 18 U.S.C. § 1030 offense involving damage
to a protected computer, if, as a result of that offense,
death resulted.";
by redesignating subdivision (B) as subdivision (C);
and by inserting after subdivision (A) the following:
"(B)
Upward Departure for Debilitating Impact on a Critical
Infrastructure. An upward departure would be warranted
in a case in which subsection (b)(13)(iii) applies and
the disruption to the critical infrastructure(s) is
so substantial as to have a debilitating impact on national
security, national economic security, national public
health or safety, or any combination of those matters.".
The Commentary to § 2B1.1 captioned "Background"
is amended by adding at the end the following paragraph:
" Subsection (b)(13) implements the directive in
section 225(b) of Public Law 107-296. The minimum offense
level of level 24 provided in subsection (b)(13)(B)
for an offense that resulted in a substantial disruption
of a critical infrastructure reflects the serious impact
such an offense could have on national security, national
economic security, national public health or safety,
or a combination of any of these matters.".
Section 2B2.3(b)(1) is amended by striking "or
" after "airport;" and by inserting after
"residence" the following:
"; 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".
The Commentary to § 2B2.3 captioned "Application
Notes" is amended in Note 1 by inserting after
"United States Code." the following paragraph:
" '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.";
and by inserting after "Instructions)." the
following paragraph:
" 'Government entity' has the meaning given that
term in 18 U.S.C. § 1030(e)(9).".
Section 2B3.2(b)(3) is amended by striking subdivision
(B) as follows:
"(B)
If the offense involved preparation to carry out a threat
of (i) death, (ii) serious bodily injury, (iii) kidnapping,
or (iv) product tampering; or if the participant(s)
otherwise demonstrated the ability to carry out such
threat, increase by 3 levels.",
and inserting the following:
"(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.".
The Commentary to § 2B3.2 captioned "Application
Notes" is amended by striking Note 1 as follows:
"1.
'Firearm,' '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).",
and inserting the following:
"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).".
The Commentary to § 2M3.2 captioned "Statutory
Provisions" is amended by inserting "§
" before "793(a)"; and by inserting ",
1030(a)(1)" after "(g)".
Appendix A (Statutory Index) is amended by inserting
after the line referenced to 18 U.S.C. § 2512 the
following:
"18 U.S.C. § 2701 2B1.1".
Reason for Amendment: This amendment addresses the serious
harm and invasion of privacy that can result from offenses
involving the misuse of, or damage to, computers. It
implements the directive in section 225(b) of the Homeland
Security Act of 2002, Pub. L. 107-296, which required
the Commission to review, and if appropriate amend,
the guidelines and policy statements applicable to persons
convicted of offenses under 18 U.S.C. § 1030 (fraud
and related activity in connection with computers) to
ensure that the guidelines and policy statements reflect
the serious nature and growing incidence of such offenses
and the need for an effective deterrent and appropriate
punishment. The directive further requires the Commission
to consider the extent to which eight specific factors
were or were not accounted for by the guidelines. The
amendment responds to the directive by making several
changes to § § 2B1.1 (Larceny, Embezzlement,
and Other Forms of Theft; Offenses Involving Stolen
Property; Property Damage or Destruction; Fraud and
Deceit; Forgery; Offenses Involving Altered or Counterfeit
Instruments Other than Counterfeit Bearer Obligations
of the United States), 2B2.3 (Trespass), and 2B3.2 (Extortion
by Force or Threat of Injury or Serious Damage). These
changes are designed to supplement existing guidelines
and policy statements and thereby ensure that offenses
under 18 U.S.C. § 1030 are adequately addressed
and punished.
First, the amendment adds a new specific offense characteristic
at § 2B1.1(b)(13) with three alternative enhancements
of two, four, and six levels. The first enhancement
provides a two level increase for convictions under
18 U.S.C. § 1030 that involve either (1) a computer
system used to maintain or operate a critical infrastructure
or used in furtherance of the administration of justice,
national defense, or national security; or (2) an intent
to obtain private personal information. The second enhancement
provides a four level increase for a conviction under
18 U.S.C. § 1030(a)(5)(A)(i), which requires a
heightened showing of intent to cause damage. The third
enhancement provides a six level increase, with a minimum
offense level of level 24, for a conviction under 18
U.S.C. § 1030 that resulted in a substantial disruption
of a critical infrastructure. The graduated levels ensure
incremental punishment for increasingly serious conduct,
and were chosen in recognition of the fact that conduct
supporting application of a more serious enhancement
frequently will encompass behavior relevant to a lesser
enhancement as well. Accordingly, the most serious applicable
enhancement will apply in any particular case.
The minimum offense level of level 24 applicable to
the third such enhancement was chosen to maintain parity
with the minimum offense level that applies to an offense
that substantially jeopardized the safety and soundness
of a financial institution, substantially endangered
the solvency or financial security of a publicly traded
company or an organization of at least 1,000 employees,
or substantially endangered the solvency or financial
security of 100 or more victims. See § 2B1.1(b)(12)(B).
Because of the potential overlap in certain cases, the
commentary provides that the enhancement at § 2B1.1(b)(12)(B)
will not apply in a case in which the conduct supporting
the six level critical infrastructure enhancement is
the only conduct that forms the basis for the §
2B1.1(b)(12)(B) enhancement.
The minimum offense level of level 24 applicable to
the third enhancement also reflects the fact that some
offenders to whom the enhancement may apply will be
subject to a statutory maximum penalty of five years'
imprisonment, i.e., those convicted of an offense under
18 U.S.C. § 1030(a)(5)(A)(ii). To ensure that the
most egregious cases involving critical infrastructure
are adequately addressed, the amendment also provides
an encouraged upward departure for cases in which the
disruption of the critical infrastructure has a debilitating
impact on national security, national economic security,
national public health or safety, or any combination
of these matters.
A definition of critical infrastructure is provided
in the commentary. This definition is derived in part
from the definition of critical infrastructure in the
USA PATRIOT Act (see Pub. L. 107-56, section 1016; 42
U.S.C. § 5195c(e)) but was modified to ensure that
the enhancement will apply to substantial disruptions
of critical infrastructure that are regional, rather
than national, in scope. Examples of critical infrastructures
are provided.
Second, the amendment modifies the rule of construction
relating to the calculation of loss in protected computer
cases. This change was made to incorporate more fully
the statutory definition of loss at 18 U.S.C. §
1030(e)(11), added as part of the USA PATRIOT Act, and
to clarify its application to all 18 U.S.C. § 1030
offenses sentenced under § 2B1.1.
Third, the amendment expands the upward departure note
in § 2B1.1. That note provides that an upward departure
may be warranted if an offense caused or risked substantial
nonmonetary harm, including physical harm. The amendment
adds a provision that expressly states that an upward
departure would be warranted for an offense under 18
U.S.C. § 1030 involving damage to a protected computer
that results in death.
Fourth, the amendment modifies § 2B2.3, to which
18 U.S.C. § 1030(a)(3) (misdemeanor trespass on
a government computer) offenses are referenced, and
§ 2B3.2, to which 18 U.S.C. § 1030(a)(7) (extortionate
demand to damage protected computer) offenses are referenced,
to provide enhancements relating to computer systems
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. The amendment expands the scope of existing
enhancements to ensure that trespasses and extortions
involving these types of important computer systems
are addressed.
Finally, the amendment references offenses under 18
U.S.C. § 2701 (unlawful access to stored communications)
to § 2B1.1. Prior to the Act, a first offense under
section 2701 was classified as a misdemeanor offense,
and the guidelines did not reference the statute in
Appendix A (Statutory Index). Given that the Act increased
the penalties available for 18 U.S.C. § 2701 offenses,
the amendment references the statute in Appendix A.
Section 2701 offenses are referenced to § 2B1.1
because such offenses involve the obtaining, altering,
or denial of authorized access to stored wire or electronic
communications, conduct that is related to fraud, theft,
and property damage, which are covered by § 2B1.1.
***
18
USCS Appx C, Amend 655
Amendment
655.
The Commentary to § 2B1.1 captioned "Application
Notes", as amended by Amendment 654, is further
amended in subdivision (A)(ii) of Note 18, as redesignated
by Amendment 653, by adding at the end the following:
"An upward departure also would be warranted, for
example, in a case involving animal enterprise terrorism
under 18 U.S.C. § 43, if, in the course of the
offense, serious bodily injury or death resulted, or
substantial scientific research or information were
destroyed.".
Section 2K1.3(a) is amended by redesignating subdivisions
(3) and (4) as subdivisions (4) and (5), respectively;
and by inserting after subdivision (2) the following:
"(3)
18, if the defendant was convicted under 18 U.S.C. §
842(p)(2);".
Section 2K1.3(b)(3) is amended by inserting "(A)
was convicted under 18 U.S.C. § 842(p)(2); or (B)"
after "defendant".
Section 2K1.3(c)(1) is amended by inserting "(A)
was convicted under 18 U.S.C. § 842(p)(2); or (B)"
after "defendant".
The Commentary to § 2K1.3 captioned "Application
Notes" is amended in Note 3 by striking "(3)"
and inserting "(4)".
The Commentary to § 2K1.3 captioned "Application
Notes" is amended in the second paragraph of Note
9 by striking "(3)" and inserting "(4)".
The Commentary to § 2K1.3 captioned "Application
Notes" is amended in Note 11 by adding at the end
the following new paragraph:
"In addition, for purposes of subsection (c)(1)(A),
'that other offense' means, with respect to an offense
under 18 U.S.C. § 842(p)(2), the underlying Federal
crime of violence.".
Section 2K1.4(a)(1)(B) is amended by striking "or
a ferry" and inserting "a ferry, a public
transportation system, a state or government facility,
an infrastructure facility, or a place of public use".
Section 2K1.4(a) is amended by striking subdivision
(2) as follows:
"(2)
20, if the offense (A) created a substantial risk of
death or serious bodily injury to any person other than
a participant in the offense; (B) involved the destruction
or attempted destruction of a structure other than (i)
a dwelling, or (ii) an airport, an aircraft, a mass
transportation facility, a mass transportation vehicle,
or a ferry; or (C) endangered (i) a dwelling, (ii) a
structure other than a dwelling, or (iii) an aircraft,
a mass transportation vehicle, or a ferry; or",
and inserting the following:
"(2)
20, if the offense (A) created a substantial risk of
death or serious bodily injury to any person other than
a participant in the offense; (B) involved the destruction
or attempted destruction of a structure other than (i)
a dwelling, or (ii) an airport, an aircraft, a mass
transportation facility, a mass transportation vehicle,
a ferry, a public transportation system, a state or
government facility, an infrastructure facility, or
a place of public use; or (C) endangered (i) a dwelling,
(ii) a structure other than a dwelling, or (iii) an
airport, an aircraft, a mass transportation facility,
a mass transportation vehicle, a ferry, a public transportation
system, a state or government facility, an infrastructure
facility, or a place of public use; or".
The Commentary to § 2K1.4 captioned "Statutory
Provisions" is amended by inserting ", 2332f"
after "2332a".
The Commentary to § 2K1.4 captioned "Application
Notes" is amended in Note 1 by adding at the end
the following new paragraph:
" 'State or government facility', 'infrastructure
facility', 'place of public use', and 'public transportation
system' have the meaning given those terms in 18 U.S.C.
§ 2332f(e)(3), (5), (6), and (7), respectively.".
Section 2M5.3 is amended in the heading by adding "or
For a Terrorist Purpose" after "Organizations".
Section 2M5.3(b)(1) is amended in subdivision (C) by
striking "or" after "explosives;";
in subdivision (D) by inserting "the intent,"
after "with" and by inserting a comma after
"knowledge"; and by inserting "; 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" after "(A) through (C)".
The Commentary to § 2M5.3 captioned "Statutory
Provision" is amended by striking "Provision"
and inserting "Provisions"; by inserting "§
" before "2339B"; and by inserting ",
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))"
after "2339B".
The Commentary to § 2M5.3 captioned "Application
Notes" is amended in Note 2(A) by inserting "funds
or other" after "volume of the".
Section 2M6.1(a)(2) is amended by inserting "and"
after "(a)(3),"; and by striking ", and
(a)(5)".
Section 2M6.1(a)(3) is amended by inserting "or"
after the semicolon.
Section 2M6.1(a)(4) is amended by inserting "(A)"
after "if"; and by inserting "(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." after "or".
Section § 2M6.1(a) is amended by striking subdivision
(5) as follows:
"(5)
20, if the offense (A) 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 (B) did
not involve any conduct evidencing an intent or ability
to carry out the threat.".
Section 2M6.1(b)(1) is amended by striking the comma
after "(a)(2)" and inserting "or";
and by striking ", or (a)(5)".
Section 2M6.1(b)(2) is amended by inserting "(A)"
after "(a)(4)".
Section 2M6.1(b)(3) is amended by inserting "or"
after "(a)(3),"; and by striking ", or
(a)(5)".
The Commentary to § 2M6.1 captioned "Statutory
Provisions" is amended by inserting "(only
with respect to weapons of mass destruction as defined
in 18 U.S.C. § 2332a(c)(2)(B), (C), and (D)),"
after "842(p)(2)"; and by striking ",
but including any biological agent, toxin, or vector".
The Commentary to § 2M6.1 captioned "Application
Notes" is amended in Note 1 in the paragraph that
begins "'Select biological agent'" by inserting
"(A)" after "identified"; by inserting
"and maintained" after "established";
and by striking "511(d) of the Antiterrorism and
Effective Death Penalty Act, Pub. L. 104-132. See 42
C.F.R. part 72." and inserting "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).".
The Commentary to § 2M6.1 captioned "Application
Notes" is amended in Note 2 by striking "(a)(3)"
each place it appears and inserting "(a)(4)(B)".
Chapter Two, Part Q, is amended by striking § 2Q1.4
in its entirety as follows:
"§ 2Q1.4.
Tampering or Attempted Tampering with Public Water System
(a)
Base Offense Level: 18
(b)
Specific Offense Characteristics
(1)
If a risk of death or serious bodily injury was created,
increase by 6 levels.
(2)
If the offense resulted in disruption of a public water
system or evacuation of a community, or if cleanup required
a substantial expenditure, increase by 4 levels.
(3)
If the offense resulted in an ongoing, continuous, or
repetitive release of a contaminant into a public water
system or lasted for a substantial period of time, increase
by 2 levels.
(4)
If the purpose of the offense was to influence government
action or to extort money, increase by 6 levels.
Commentary
Statutory Provision: 42 U.S.C. § 300i-1.
Application Note:
1.
'Serious bodily injury' is defined in the Commentary
to § 1B1.1 (Application Instructions).",
and inserting the following new guideline:
"§ 2Q1.4.
Tampering or Attempted Tampering with a Public Water
System; Threatening to Tamper with a Public Water System
(a)
Base Offense Level (Apply the greatest):
(1)
26;
(2)
22, if the offense involved (A) a threat to tamper with
a public water system; and (B) any conduct evidencing
an intent to carry out the threat; or
(3)
16, if the offense involved a threat to tamper with
a public water system but did not involve any conduct
evidencing an intent to carry out the threat.
(b)
Specific Offense Characteristics
(1)
If (A) any victim sustained permanent or lifethreatening
bodily injury, increase by 4 levels; (B) any victim
sustained serious bodily injury, increase by 2 levels;
or (C) the degree of injury is between that specified
in subdivisions (A) and (B), increase by 3 levels.
(2)
If the offense resulted in (A) a substantial disruption
of public, governmental, or business functions or services;
or (B) a substantial expenditure of funds to clean up,
decontaminate, or otherwise respond to the offense,
increase by 4 levels.
(3)
If the offense resulted in an ongoing, continuous, or
repetitive release of a contaminant into a public water
system or lasted for a substantial period of time, 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)
in any other case, 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.
(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, lifethreatening, 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 Provision: 42 U.S.C. § 300i-1.
Application Notes:
1.
Definitions. For purposes of this guideline, 'permanent
or life-threatening bodily injury' and 'serious bodily
injury' have the meaning given those terms in Note 1
of the Commentary to § 1B1.1 (Application Instructions).
2.
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).
3.
Departure Provisions.
(A)
Downward Departure Provision. The base offense level
in subsection (a)(1) reflects that offenses covered
by that subsection typically pose a risk of death or
serious bodily injury to one or more victims, or cause,
or are intended to cause, bodily injury. In the unusual
case in which such an 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.
(B)
Upward Departure Provisions. If the offense caused extreme
psychological injury, or caused substantial property
damage or monetary loss, an upward departure may be
warranted. If the offense was calculated to influence
or affect the conduct of government by intimidation
or coercion, or to retaliate against government conduct,
an upward departure would be warranted. See Application
Note 4 of § 3A1.4 (Terrorism).".
Chapter Two, Part Q, is amended by striking § 2Q1.5
in its entirety as follows:
"§ 2Q1.5.
Threatened Tampering with Public Water System
(a)
Base Offense Level: 10
(b)
Specific Offense Characteristic
(1)
If the threat or attempt resulted in disruption of a
public water system or evacuation of a community or
a substantial public expenditure, increase by 4 levels.
(c)
Cross Reference
(1)
If the purpose of the offense was to influence government
action or to extort money, apply § 2B3.2 (Extortion
by Force or Threat of Injury or Serious Damage).
Commentary
Statutory Provision: 42 U.S.C. § 300i-1.".
Section § 2S1.1(b)(1)(B)(iii) is amended by striking
"terrorism,".
The Commentary to § 2S1.1 captioned "Statutory
Provisions" is amended by inserting ", 1960
(but only with respect to unlicensed money transmitting
businesses as defined in 18 U.S.C. § 1960(b)(1)(C))"
after "1957".
The Commentary to § 2S1.3 captioned "Statutory
Provisions" is amended by inserting "(but
only with respect to unlicensed money transmitting businesses
as defined in 18 U.S.C. § 1960(b)(1)(A) and (B))"
after "1960".
The Commentary to § 2X2.1 captioned "Statutory
Provisions" is amended by inserting ", 2339C(a)(1)(A)"
after "2339A".
The Commentary to § 2X2.1 captioned "Application
Notes" is amended in Note 1 by inserting "or
§ 2339C(a)(1)(A)" after "2339A";
and by inserting ", or provided or collected funds
for, "after "supported".
Section 2X3.1 is amended by striking the following:
"(a)
Base Offense Level: 6 levels lower than the offense
level for the underlying offense, but in no event less
than 4, or more than 30. However, in a case in which
the conduct is limited to harboring a fugitive, the
base offense level under this subsection shall not be
more than level 20.",
and inserting the following:
"(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).
(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).".
The Commentary to § 2X3.1 captioned "Statutory
Provisions" is amended by inserting ", 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))" after "2339A".
The Commentary to § 2X3.1 captioned "Application
Notes" is amended in Note 1 by inserting ",
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" after
"that offense)".
Appendix A (Statutory Index) is amended in the line
referenced to 18 U.S.C. § 1960 by inserting "2S1.1,"
before "2S1.3";
by inserting after the line referenced to 18 U.S.C.
§ 2332d the following new line:
"18 U.S.C. § 2332f 2K1.4, 2M6.1";
by inserting after the line referenced to 18 U.S.C.
§ 2339B the following new lines:
"18 U.S.C. § 2339C(a)(1)(A) 2X2.1
18 U.S.C. § 2339C(a)(1)(B) 2M5.3
18 U.S.C. § 2339C(c)(2)(A) 2X3.1
18 U.S.C. § 2339C(c)(2)(B) 2M5.3, 2X3.1";
and in the line referenced to 42 U.S.C. § 300i-1
by striking ", 2Q1.5".
Reason for Amendment: This amendment is a three part
amendment that (1) further responds to the Uniting and
Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism (USA PATRIOT
Act) Act of 2001, Pub. L. 107-56; (2) responds to the
Public Health Security and Bioterrorism Preparedness
and Response Act of 2002, Pub. L. 107-188; and (3) responds
to the Terrorist Bombings Preparedness and Response
Act of 2002, Pub. L. 107-197.
First, this amendment makes changes to the money laundering
and transactions structuring guidelines to complete
work begun in 2002 to address the provisions of the
USA PATRIOT Act. The amendment eliminates the six level
enhancement for terrorism in § 2S1.1 (Laundering
of Monetary Instruments; Engaging in Monetary Transactions
in Property Derived from Unlawful Activity) because
such conduct is adequately accounted for by the terrorism
adjustment at § 3A1.4 (Terrorism). The terrorism
adjustment at § 3A1.4 applies if the offense is
a felony that involved, or was intended to promote,
a federal crime of terrorism as defined in 18 U.S.C.
§ 2332b(g)(5). Therefore, if the defendant knew
or believed that any of the laundered funds were the
proceeds of, or were intended to promote, an offense
involving terrorism, as defined in § 3A1.4, that
adjustment will apply. This amendment also provides
for the treatment of certain offenses under 18 U.S.C.
§ 1960. The amendment changes Appendix A (Statutory
Index) to refer violations of 18 U.S.C. § 1960
to both §§ 2S1.1 and 2S1.3 (Structuring Transactions
to Evade Reporting Requirements; Failure to Report Case
or Monetary Transactions; Failure to File Currency and
Monetary Instrument Report; Knowingly Filing False Reports;
Bulk Cash Smuggling; Establishing or Maintaining Prohibited
Accounts). Referring violations of 18 U.S.C. §
1960(b)(1)(C) to § 2S1.1 is appropriate because
the essence of this offense is money laundering, rather
than structuring transactions to evade reporting requirements.
The amendment also raises the maximum offense level
in § 2X3.1 (Accessory After the Fact) from level
20 to level 30 for offenses in which the conduct involves
harboring or concealing a fugitive involved in a terrorism
offense. The Commission determined that the heightened
maximum offense level of level 30 is appropriate for
offenses involving the harboring of terrorists because
of the relative seriousness of those offenses. Specifically,
the heightened maximum offense level applies in any
case in which the defendant is convicted under 18 U.S.C.
§ 2339 or § 2339A or in which the conduct
involved harboring a person who committed any offense
listed under those statutes, 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).
Second, the amendment responds to the Public Health
Security and Bioterrorism Preparedness and Response
Act of 2002. The amendment refers certain new offenses
involving biological agents and toxins to the guideline
covering nuclear, biological, and chemical weapons and
materials, § 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).
The amendment also responds to amendments made to the
Safe Drinking Water Act (42 U.S.C. § 300i-1(a))
made by section 403 of the Public Health Security and
Bioterrorism Preparedness and Response Act of 2002.
Section 1432(a) of the Safe Drinking Water Act prohibits
any person from tampering with a public water system.
The statutory maximum penalty was increased from five
years' imprisonment to 20 years' imprisonment. Section
1432(b) of the Act prohibits anyone from attempting
or threatening to tamper with a public water system.
The statutory maximum penalty was increased from three
years' imprisonment to ten years' imprisonment.
The amendment consolidates §§ 2Q1.5 (Threatened
Tampering with Public Water System) and 2Q1.4 (Tampering
or Attempted Tampering with Public Water System). This
consolidation reflects the similar manner in which threats
to carry out a nuclear, biological, or chemical weapons
offense are treated under § 2M6.1. Three alternative
base offense levels are provided for the substantive
offense and for a threat to carry out the substantive
offense, either accompanied or unaccompanied by other
conduct evidencing an intent to carry out the threat.
The amendment also increases the base offense level
for offenses involving tampering and threatened tampering
with a public water system. The amendment increases
the base offense level for tampering with a public water
system from level 18 to level 26. The six level enhancement
for the risk of death or serious bodily injury (in the
predecessor guideline) is incorporated into the base
offense level, as are two levels for bodily injury (similar
to the treatment of this aggravated conduct in the consumer
product tampering guideline). A graduated enhancement
for serious or life-threatening bodily injury, modeled
after the nuclear, biological, and chemical guideline
and the consumer product tampering guideline, is added.
Likewise, the base offense level for threatening to
tamper with a public water system, without conduct evidencing
an intent to carry out the threat, is increased from
level 10 to level 16. A base offense level of level
22 is provided if there is conduct evidencing an intent
to carry out the threat. For point of comparison, the
existing base offense levels for threatening communications
under § 2A6.1 (Threatening or Harassing Communications)
is level 12, and for threatened use of nuclear, biological,
and chemical weapons under § 2M6.1 is level 20.
These substantial increases in the base offense levels
for threatened tampering of a public water system are
provided to ensure proportionality with similar offenses
and to respond to the increased statutory maximum penalties
made by section 403 of the Public Health Security and
Bioterrorism Preparedness and Response Act of 2002.
Additionally, the enhancement in subsection (b)(2) regarding
the disruption of the public water system has been expanded
slightly to make it consistent with similar enhancements
in other related guidelines, such as the nuclear, biological,
and chemical guideline, § 2M6.1.
This amendment adds an invited upward departure provision
in § 2B1.1 (Larceny, Embezzlement, and Other Forms
of Theft; Offenses Involving Stolen Property; Property
Damage or Destruction; Fraud and Deceit; Forgery; Offenses
Involving Altered or Counterfeit Instruments Other than
Counterfeit Bearer Obligations of the United States),
to account for aggravating conduct that may occur in
connection with an animal enterprise offense under 18
U.S.C. § 43. While reference only to that guideline
generally continues to be appropriate for violations
under 18 U.S.C. § 43, that guideline fails to account
for aggravated situations in which serious bodily injury
or death results. Although the property damage guideline
contains an enhancement for the risk of serious bodily
injury or death, there is no enhancement or cross reference
in that guideline that would provide a higher offense
level if actual serious bodily injury or death resulted.
Given the highly unusual occurrence of death or serious
bodily injury in property damage cases generally and
the infrequency of these specific offenses, the amendment
adds an invited upward departure provision in the commentary
of § 2B1.1 if death or serious bodily injury occurs
in an offense under 18 U.S.C. § 43, or if substantial
or significant scientific information or research is
lost as part of such an offense.
Third, the amendment amends Appendix A (and the Statutory
Provisions of the pertinent Chapter Two guidelines)
to add three new offenses created by the Terrorist Bombings
Convention Implementation Act of 2002, and provides
conforming amendments within a number of Chapter Two
guidelines to incorporate more fully the new offenses
into the offense guidelines. Section 102 of the Act
created a new offense at 18 U.S.C. § 2332f, which
provides in subsection (a) that "whoever unlawfully
delivers, places, discharges, or detonates an explosive
or other lethal device in, into, or against a place
of public use, a state or government facility, a public
transportation system, or an infrastructure facility
(1) with the intent to cause death or serious bodily
injury, or (2) with the intent to cause extensive destruction
of such a place, facility, or system, where such destruction
results in or is likely to result in major economic
loss" and in subsection (b) that "whoever
attempts or conspires to commit [such] an offense"
shall be punished as provided under 18 U.S.C. §
2332a(a). Section 2332a offenses currently are referenced
to §§ 2K1.4 (Arson; Property Damage by Use
of Explosives) and 2M6.1. The amendment refers this
new offense to those guidelines as well. In addition,
the amendment amends the alternative base offense levels
in § 2K1.4(a)(1) so that the base offense level
of level 24 applies to targets of 18 U.S.C. § 2332f
offenses, namely, state or government facilities, infrastructure
facilities, public transportation systems and "places
of public use".
Section 202 of the Act created a new offense at 18 U.S.C.
§ 2339C. The amendment refers the new offense at
18 U.S.C. § 2339C(1)(A) to § 2X2.1 (Aiding
and Abetting). The new offense involves providing or
collecting funds knowing or intending that the funds
would be used to carry out any of a number of specified
offenses. Accordingly, the amendment treats these offenses
in the same manner as 18 U.S.C. § 2339A offenses,
which aid and abet a predicate offense listed in the
statute. An amendment is also made in § 2X2.1 to
provide a definition for the "underlying offense"
that is aided and abetted.
The amendment also refers the new offense at 18 U.S.C.
§ 2339C(a)(1)(B) to § 2M5.3 (Providing Material
Support or Resources to Designated Foreign Terrorist
Organizations). Reference to § 2M5.3 is appropriate
because this offense involves generally providing or
collecting funds knowing or intending that the funds
would be used to carry out an act which by its nature
is a terrorist act (because it is meant to intimidate
a civilian population or to compel a government or international
organization to do something or to refrain from doing
something). Therefore, the essence of the offense is
the provision of material support to terrorists, which
appropriately is referenced to § 2M5.3. The amendment
expands § 2M5.3 to include not only designated
foreign terrorist organizations but other terrorists
as well.
Additionally, 18 U.S.C. § 2339C(c)(2) makes it
unlawful in the United States, or outside the United
States by a national of the United States or an entity
organized under the laws of the United States, to knowingly
conceal or disguise the nature, location, source, ownership,
or control of any material support, resources, or funds
knowing or intending that they were (1) provided in
violation of 18 U.S.C. § 2339B, or (2) provided
or collected in violation of 18 U.S.C. § 2339C(a)(1)
or (2). The maximum term of imprisonment for a violation
of subsection 18 U.S.C. § 2339C(c) is 10 years.
The amendment references offenses under 18 U.S.C. §
2339C(c)(2)(A) to § 2X3.1 (Accessory After the
Fact), because the essence of such an offense is the
concealment of resources that were known or intended
to have been provided in violation of another substantive
offense, namely, 18 U.S.C. § 2339B. An amendment
is made in § 2X3.1 to provide a definition of the
"underlying offense" to which the defendant
is an accessory.
The amendment references offenses under 18 U.S.C. §
2339C(c)(2)(B) to §§ 2M5.3 and 2X3.1. To the
extent the offense involved knowingly concealing or
disguising the nature, location, source, ownership,
or control of any funds knowing or intending that they
were provided or collected in violation of 18 U.S.C.
§ 2339C(a)(1)(A), the offense should be sentenced
under § 2X3.1. This is because the concealment
occurs with respect to funds the defendant knows are
to be used, in full or in part, in order to carry out
an act which constitutes any number of specified offenses.
To the extent the offense involved knowingly concealing
or disguising the nature, location, source, ownership,
or control of any funds knowing or intending that they
were provided or collected in violation of 18 U.S.C.
§ 2339C(a)(1)(B), the offense should be sentenced
under § 2M5.3. This is because the concealment
occurs with respect to material support the defendant
knows is to be used, in full or in part, in order to
carry out an act which by its nature is a terrorist
act (because it is meant to intimidate a civilian population
or to compel a government or international organization
to do something or to refrain from doing something).
A conforming amendment is added to the Statutory Provisions
of § § 2M5.3 and 2X3.1.
Finally, an amendment is made to § 2K1.3 (Unlawful
Receipt, Possession, or Transportation of Explosive
Materials; Prohibited Transaction Involving Explosive
Materials) to add an additional base offense level of
level 18 for certain offenses committed under 18 U.S.C.
§ 842(p)(2) involving explosives, destructive devices,
or weapons of mass destruction. The statute is referenced
in Appendix A to § § 2K1.3 and 2M6.1. The
applicable offense levels at § 2M6.1 are levels
42 and 28. The applicable base offense level at §
2K1.3 is level 12. The base offense level of level 12
appears to be disproportionately low compared with other
20 year offenses and compared with the treatment of
18 U.S.C. § 842(p)(2) offenses under § 2M6.1.
This is especially true in light of the definition of
destructive device, defined at 18 U.S.C. § 921(a)(4)
to include any explosive, incendiary, or poison gas
(1) bomb; (2) grenade; (3) rocket having a propellant
charge of more than four ounces; (4) missile having
an explosive or incendiary charge of more than one-quarter
ounce; (5) mine; or (6) device similar to any of the
devices described in the preceding clauses.
The amendment makes the enhancement at § 2K1.3(b)(3)
and the cross reference at § 2K1.3(c)(1) applicable
to 18 U.S.C. § 842(p)(2) offenses. In cases in
which the defendant used or possessed any explosive
material in connection with another felony offense or
possessed or transferred any explosive material with
knowledge, intent, or reason to believe that it would
be used or possessed in connection with another felony
offense, subsection (b)(3) provides a four level enhancement
and a minimum offense level of level 18. Alternatively,
the cross reference at subsection (c)(1) references
such cases either to § 2X1.1 (Attempt, Solicitation,
or Conspiracy (Not Covered by a Specific Guideline)),
or to the most analogous homicide guideline if death
resulted, if the resulting offense level is greater.
Application of both subsection (b)(3) and subsection
(c)(1) to 18 U.S.C. § 842(p)(2) offenses is appropriate
because of the defendant's knowledge and/or intent that
the defendant's teaching would be used to carry out
another felony.
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