Cessna 185 Training Manual

“(2) If the offense involved an organized scheme to engage in insider trading and the offense level determined above is less than level 14, increase to level 14.”. The Commentary to §2B1.4 captioned “Application Note” is amended in the caption by striking “Note” and inserting “Notes”; by redesignating Note 1 as Note 2 and inserting before Note 2 (as so redesignated) the following: “1. Application of Subsection (b)(2).—For purposes of subsection (b)(2), an ‘organized scheme to engage in insider trading’ means a scheme to engage in insider trading that Amendment 761 Supplement to Appendix C (November 1, 2024) ║ 3 involves considered, calculated, systematic, or repeated efforts to obtain and trade on inside information, as distinguished from fortuitous or opportunistic instances of in- sider trading. The following is a non-exhaustive list of factors that the court may consider in deter- mining whether the offense involved an organized scheme to engage in insider trading: (A) the number of transactions; (B) the dollar value of the transactions; (C) the number of securities involved; (D) the duration of the offense; (E) the number of participants in the scheme (although such a scheme may exist even in the absence of more than one participant); (F) the efforts undertaken to obtain material, nonpublic information; (G) the number of instances in which material, nonpublic information was ob- tained; and (H) the efforts undertaken to conceal the offense.”; in Note 2 (as so redesignated) by striking “only”; and by adding at the end the following new paragraph: “Furthermore, §3B1.3 should be applied if the defendant’s employment in a position that in- volved regular participation or professional assistance in creating, issuing, buying, selling, or trading securities or commodities was used to facilitate significantly the commission or con- cealment of the offense. It would apply, for example, to a hedge fund professional who regularly participates in securities transactions or to a lawyer who regularly provides professional as- sistance in securities transactions, if the defendant’s employment in such a position was used to facilitate significantly the commission or concealment of the offense. It ordinarily would not apply to a position such as a clerical worker in an investment firm, because such a position ordinarily does not involve special skill. See §3B1.3, comment. (n. 4).”. The Commentary to §2B1.4 captioned “Background” is amended by adding at the end the fol- lowing new paragraph: “ Subsection (b)(2) implements the directive to the Commission in sec- tion 1079A(a)(1)(A) of Public Law 111–203.”. REASON FOR AMENDMENT: This amendment responds to the two directives to the Commis- sion in the Dodd–Frank Wall Street Reform and Consumer Protection Act, Pub. L. 111–203 (the “Act”). The first directive relates to securities fraud and similar offenses, and the second directive relates to mortgage fraud and financial institution fraud. Securities Fraud and Similar Offenses Section 1079A(a)(1)(A) of the Act directs the Commission to “review and, if appropriate, amend” the guidelines and policy statements applicable to “persons convicted of offenses relat- ing to securities fraud or any other similar provision of law, in order to reflect the intent of Amendment 761 4 ║ Supplement to Appendix C (November 1, 2024) Congress that penalties for the offenses under the guidelines and policy statements appropri- ately account for the potential and actual harm to the public and the financial markets from the offenses.” Section 1079A(a)(1)(B) provides that in promulgating any such amendment the Commission shall— (i) ensure that the guidelines and policy statements, particularly sec- tion 2B1.1(b)(14) and section 2B1.1(b)(17) (and any successors thereto), re- flect— (I) the serious nature of the offenses described in subparagraph (A); (II) the need for an effective deterrent and appropriate punishment to pre- vent the offenses; and (III) the effectiveness of incarceration in furthering the objectives described in subclauses (I) and (II); (ii) consider the extent to which the guidelines appropriately account for the po- tential and actual harm to the public and the financial markets resulting from the offenses; (iii) ensure reasonable consistency with other relevant directives and guidelines and Federal statutes; (iv) make any necessary conforming changes to guidelines; and (v) ensure that the guidelines adequately meet the purposes of sentencing, as set forth in section 3553(a)(2) of title 18, United States Code. The amendment responds to this directive in two ways. First, the amendment amends the fraud guideline, §2B1.1 (Theft, Property Destruction, and Fraud), to provide a special rule for determining actual loss in cases involving the fraudulent inflation or deflation in the value of a publicly traded security or commodity. Case law and comments received by the Commission indicate that determinations of loss in cases involving securities fraud and similar offenses are complex and that a variety of different methods are in use, possibly resulting in unwarranted sentencing disparities. The amendment amends §2B1.1 to provide a special rule regarding how to calculate actual loss in these types of cases. Specifically, the amendment creates a new Application Note 3(F)(ix) which establishes a rebuttable presumption that “the actual loss attributable to the change in value of the security or commodity is the amount determined by (I) calculating the difference between the average price of the security or commodity during the period that the fraud occurred and the average price of the security or commodity during the 90-day period after the fraud was disclosed to the market, and (II) multiplying the difference in average price by the number of shares outstanding.” The special rule further provides that, “[i]n determining whether the amount so determined is a reasonable estimate of the actual loss attributable to the change in value of the security or commodity, the court may consider, among other factors, the extent to which the amount so determined includes significant changes in value not result- ing from the offense (e.g., changes caused by external market forces, such as changed economic circumstances, changed investor expectations, and new industry-specific or firm-specific facts, conditions, or events).” The special rule is based upon what is sometimes referred to as the “modified rescissory method” and should ordinarily provide a “reasonable estimate of the loss” as required by Ap- plication Note 3(C). This special rule is intended to provide courts a workable and consistent formula for calculating loss that “resulted from the offense.” See §2B1.1, comment. (n.3(A)(i)). Amendment 761 Supplement to Appendix C (November 1, 2024) ║ 5 By averaging the stock price during the period in which the fraud occurred and a set 90-day period after the fraud was discovered, the special rule reduces the impact on the loss calcula- tion of factors other than the fraud, such as overall growth or decline in the price of the stock. See, e.g., United States v. Bakhit, 218 F. Supp. 2d 1232 (C.D. Cal. 2002); United States v. Snyder, 291 F.3d 1291 (11th Cir. 2002); United States v. Brown, 595 F.3d 498 (3d Cir. 2010); see also 15 U.S.C. § 78u-4(e) (statutorily setting forth a similar method for loss calculation in the context of private securities litigation). Furthermore, applying this special rule could “elim- inate[], or at least reduce[], the complexity, uncertainty, and expense inherent in attempting to determine out-of-pocket losses on a case-by-case basis.” See United States v. Grabske, 260 F. Supp. 2d. 866, 873–74 (N.D. Cal. 2002). By applying a rebuttable presumption, however, the amendment also provides sufficient flex- ibility for a court to consider the extent to which the amount determined under the special rule includes significant changes in value not resulting from the offense (e.g., changes caused by external market forces, such as changed economic circumstances, changed investor expecta- tions, and new industry-specific or firm-specific facts, conditions, or events). The amendment also responds to the first directive by amending the insider trading guideline, §2B1.4 (Insider Trading). First, it provides a new specific offense characteristic if the offense involved an “organized scheme to engage in insider trading.” In such a case, the new specific offense characteristic provides a minimum offense level of 14. The commentary is also amended to provide factors the court may consider in determining whether the new minimum offense level applies. The amendment reflects the Commission’s view that a defendant who engages in considered, calculated, systematic, or repeated efforts to obtain and trade on inside information (as op- posed to fortuitous or opportunistic instances of insider trading) warrants, at minimum, a short but definite period of incarceration. Sentencing data indicate that when a defendant en- gages in an organized insider trading scheme, the gain from the offense ordinarily triggers an enhancement under §2B1.4(b)(1) of sufficient magnitude to result in a guideline range that requires a period of imprisonment. The amendment, however, ensures that the guidelines re- quire a period of incarceration even in such a case involving relatively little gain. The amendment also amends the commentary to §2B1.4 to provide more guidance on the ap- plicability of §3B1.3 (Abuse of Position of Trust or Use of Special Skill) in insider trading cases. In particular, the new commentary in Application Note 2 provides that §3B1.3 should be ap- plied if the defendant’s employment in a position that involved regular participation or profes- sional assistance in creating, issuing, buying, selling, or trading securities or commodities was used to facilitate significantly the commission or concealment of the offense. The commentary further provides examples of positions that may qualify for the adjustment, including a hedge fund professional who regularly participates in securities transactions or a lawyer who regu- larly provides professional assistance in securities transactions. Individuals who occupy such positions possess special knowledge regarding the financial markets and the rules prohibiting insider trading, and generally are viewed as more culpable. See §3B1.3, comment. (backg’d.). The commentary also provides as an example of a position that would not qualify for the ad- justment in §3B1.4 a clerical worker in an investment firm. Such a position ordinarily does not involve special skill and is not generally viewed as more culpable. Mortgage Fraud and Financial Institution Fraud Section 1079A(a)(2)(A) of the Act directs the Commission to “review and, if appropriate, amend” the guidelines and policy statements applicable to “persons convicted of fraud offenses relating to financial institutions or federally related mortgage loans and any other similar provisions of law, to reflect the intent of Congress that the penalties for the offenses under the Amendment 761 6 ║ Supplement to Appendix C (November 1, 2024) guidelines and policy statements ensure appropriate terms of imprisonment for offenders in- volved in substantial bank frauds or other frauds relating to financial institutions.” Sec- tion 1079A(a)(2)(B) of the Act provides that, in promulgating any such amendment, the Com- mission shall— (i) ensure that the guidelines and policy statements reflect— (I) the serious nature of the offenses described in subparagraph (A); (II) the need for an effective deterrent and appropriate punishment to pre- vent the offenses; and (III) the effectiveness of incarceration in furthering the objectives described in subclauses (I) and (II); (ii) consider the extent to which the guidelines appropriately account for the po- tential and actual harm to the public and the financial markets resulting from the offenses; (iii) ensure reasonable consistency with other relevant directives and guidelines and Federal statutes; (iv) make any necessary conforming changes to guidelines; and (v) ensure that the guidelines adequately meet the purposes of sentencing, as set forth in section 3553(a)(2) of title 18, United States Code. The amendment responds to this directive in two ways. First, the amendment adds language to the credits against loss rule, found in Application Note 3(E) of the commentary to §2B1.1. Application Note 3(E)(i) generally provides that the determination of loss under subsection (b)(1) shall be reduced by the money returned and the fair market value of the property returned and services rendered to the victim before the of- fense was detected. In the context of a case involving collateral pledged or otherwise provided by the defendant, Application Note 3(E)(ii) provides that the loss to the victim shall be reduced by either “the amount the victim has recovered at the time of sentencing from disposition of the collateral, or if the collateral has not been disposed of by that time, the fair market value of the collateral at the time of sentencing.” The Commission received comment that, in cases involving mortgage fraud where the collat- eral has not been disposed of by the time of sentencing, the fair market value of the collateral may be difficult to determine and may require frequent updating, especially in cases involving multiple properties. The comments further indicate that the lack of a uniform process may result in unwarranted sentencing disparities. The amendment responds to these concerns by establishing a new Application Note 3(E)(iii) applicable to fraud cases involving a mortgage loan where the underlying collateral has not been disposed of by the time of sentencing. In such a case, new Application Note 3(E)(iii) makes two changes to the calculation of credits against loss. First, the note changes the date on which the fair market value of the collateral is determined, from the time of sentencing to the date on which the guilt of the defendant has been established. This change is intended to avoid the need to reassess the fair market value of such collateral on multiple occasions up to the date of sentencing. Second, it establishes a rebuttable presumption that the most recent tax assess- ment value of the collateral is a reasonable estimate of the fair market value. In determining whether the tax assessment is a reasonable estimate of fair market value, the note further provides that the court may consider the recency of the tax assessment and the extent to which Amendment 761 Supplement to Appendix C (November 1, 2024) ║ 7 the jurisdiction’s tax assessment practices reflect factors not relevant to fair market value, among other factors. By structuring the special rule in this manner, the amendment addresses the need to provide a uniform practicable method for determining fair market value of undisposed collateral while providing sufficient flexibility for courts to address differences among jurisdictions regarding how closely the most recent tax assessment correlates to fair market value. The Commission heard concerns, for example, that, in some jurisdictions, the most recent tax assessment may be outdated or based upon factors, such as the age or status of the homeowner, that have no correlation to fair market value. The amendment also responds to the second directive by amending the commentary regarding the application of §2B1.1(b)(15)(B), which provides an enhancement of 4 levels if the offense involved specific types of financial harms (e.g., jeopardizing a financial institution or organi- zation). This commentary, contained in Application Note 12 to §2B1.1, provides a non-exhaus- tive list of factors the court shall consider in determining whether, as a result of the offense, the safety and soundness of a financial institution or an organization that was a publicly traded company or that had more than 1,000 employees was substantially jeopardized. For example, in the context of financial institutions, the court shall consider whether the financial institution became insolvent, was forced to reduce benefits to pensioners or insureds, was un- able on demand to refund fully any deposit, payment, or investment, or was so depleted of its assets as to be forced to merge with another institution. Similarly, in the context of a covered organization, the court shall consider whether the organization became insolvent or suffered a substantial reduction in the value of its assets, filed for bankruptcy, suffered a substantial reduction in the value of its equity securities or its employee retirement accounts, or substan- tially reduced its workforce or employee pension benefits. The amendment amends Application Note 12 to add as a new consideration whether one of the listed harms was likely to result from the offense, but did not result from the offense because of federal government intervention, such as a “bailout.” This amendment reflects the Commis- sion’s intent that §2B1.1(b)(15)(B) account for the risk of harm from the defendant’s conduct and its view that a defendant should not avoid the application of the enhancement because the harm that was otherwise likely to result from the offense conduct did not occur because of fortuitous federal government intervention. Departure Provisions Finally, the amendment also responds to the Act’s directives by amending the departure pro- visions in §2B1.1 to provide two examples of cases in which a departure may be warranted. First, the amendment amends Application Note 19(A)(iv), which provides that an upward de- parture may be warranted if the offense created a risk of substantial loss beyond the loss de- termined for purposes of subsection (b)(1). The amendment adds “risk of a significant disrup- tion of a national financial market” as an example of such a risk. This part of the amendment responds to the requirement in the Act to consider whether the guidelines applicable to the offenses covered by the directives appropriately “account for the potential and actual harm to the public and the financial markets[.]” The amendment also amends Application Note 19(C), which provides that a downward depar- ture may be warranted if the offense level substantially overstates the seriousness of the of- fense, by adding an example of a case in which such a departure may be appropriate. The example provides that “a securities fraud involving a fraudulent statement made publicly to the market may produce an aggregate loss amount that is substantial but diffuse, with rela- tively small loss amounts suffered by a relatively large number of victims,” and that, “in such Amendment 762 8 ║ Supplement to Appendix C (November 1, 2024) a case, the loss table in subsection (b)(1) and the victims table in subsection (b)(2) may combine to produce an offense level that substantially overstates the seriousness of the offense.” This part of the amendment responds to concerns raised in comment and case law that the cumu- lative impact of the loss table and the victims table may overstate the seriousness of the offense in certain cases. Effective Date: The effective date of this amendment is November 1, 2012. AMENDMENT 762 AMENDMENT: The Commentary to §2D1.1 captioned “Application Notes” is amended in Note 10(D) in the subdivision captioned “Cocaine and Other Schedule I and II Stimulants (and their immediate precursors)” by inserting after the entry relating to N-N-Dimethylampheta- mine the following new entry: “1 gm of N-Benzylpiperazine = 100 gm of marihuana”. REASON FOR AMENDMENT: This amendment responds to concerns raised by the Second Cir- cuit Court of Appeals and others regarding the sentencing of offenders convicted of offenses involving BZP (N-Benzylpiperazine), which is a Schedule I stimulant. See United States v. Figueroa, 647 F.3d 466 (2d Cir. 2011). The amendment establishes a marijuana equivalency for BZP offenses in the Drug Equivalency Table provided in Application Note 10(D) in §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with In- tent to Commit These Offenses); Attempt or Conspiracy). The marijuana equivalency estab- lished by the amendment provides that 1 gram of BZP equals 100 grams of marijuana. Prior to the amendment, the Drug Equivalency Table did not include a marijuana equivalency for BZP. As a result, in offenses involving BZP, the court determined the base offense level using the marijuana equivalency of “the most closely related controlled substance” referenced in §2D1.1. See §2D1.1, comment. (n. 5). In determining the most closely related controlled sub- stance, the commentary directs the court to consider (1) whether the controlled substance not referenced in §2D1.1 has a chemical structure that is substantially similar to a controlled sub- stance that is referenced in §2D1.1, (2) whether the controlled substance not referenced in §2D1.1 has a stimulant, depressant, or hallucinogenic effect similar to a controlled substance referenced in the guideline, and (3) whether a lesser or greater quantity of the controlled sub- stance not referenced in §2D1.1 is needed to produce a substantially similar effect as a con- trolled substance that is referenced in §2D1.1. In applying these factors, courts have reached different conclusions regarding which controlled substance referenced in §2D1.1 is most closely related to BZP and have therefore used different marijuana equivalencies in sentencing BZP offenders. The Commission’s review of case law and sentencing data indicate that some district courts have found that the controlled substance most closely related to BZP is amphetamine and used the marijuana equivalency for amphet- amine, see United States v. Major, 801 F. Supp. 2d 511, 514 (E.D. Va. 2011) (using the mariju- ana equivalency for amphetamine at full potency), while other district courts have found that the controlled substance most related to BZP is MDMA, but at varying potencies. See United States v. Bennett, 659 F.3d 711, 715–16 (8th Cir. 2011) (affirming a district court’s use of the marijuana equivalency for MDMA at full potency); United States v. Rose, 722 F. Supp. 2d 1286, 1289 (M.D. Ala. 2010) (concluding that BZP is most closely related to MDMA, but imposing a variance to reflect BZP’s reduced potency compared to MDMA). The different findings of which Amendment 763 Supplement to Appendix C (November 1, 2024) ║ 9 controlled substance is the most closely related to BZP, and the application of different poten- cies of those controlled substances, have resulted in courts imposing vastly different sentence lengths for the same conduct. The Commission reviewed scientific literature and received expert testimony and comment relating to BZP and concluded that BZP is a stimulant with pharmacologic properties similar to that of amphetamine, but is only one-tenth to one-twentieth as potent as amphetamine, depending on the particular user’s history of drug abuse. Accordingly, in order to promote uni- formity in sentencing BZP offenders and to reflect the best available scientific evidence, the amendment establishes a marijuana equivalency of 1 gram of BZP equals 100 grams of mari- juana. This corresponds to one-twentieth of the marijuana equivalency for amphetamine, which is 1 gram of amphetamine equals 2 kilograms (or 2,000 grams) of marijuana. Effective Date: The effective date of this amendment is November 1, 2012. AMENDMENT 763 AMENDMENT: Section 2D1.11 is amended in subsection (b) by adding at the end the following: “(6) If the defendant meets the criteria set forth in subdivisions (1)–(5) of subsection (a) of §5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases), decrease by 2 levels.”. The Commentary to 2D1.11 captioned “Application Notes” is amended by adding at the end the following: “9. Applicability of Subsection (b)(6).—The applicability of subsection (b)(6) shall be deter- mined without regard to the offense of conviction. If subsection (b)(6) applies, §5C1.2(b) does not apply. See §5C1.2(b)(2)(requiring a minimum offense level of level 17 if the ‘statutorily required minimum sentence is at least five years’).”. REASON FOR AMENDMENT: This amendment adds a new specific offense characteristic at sub- section (b)(6) of §2D1.11 (Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt or Conspiracy) that provides a 2-level decrease if the defendant meets the criteria set forth in subdivisions (1)–(5) of subsection (a) of §5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases) (commonly referred to as the “safety valve” criteria). The new specific offense characteristic in §2D1.11 parallels the existing 2-level de- crease at subsection (b)(16) of §2D1.1(Unlawful Manufacturing, Importing, Exporting, or Traf- ficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy). The Commission in 1995 created the 2-level reduction in §2D1.1 for offenders who meet the safety valve criteria in response to a directive in section 80001 of the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103–322. Section 80001 provided an exception to otherwise applicable statutory minimum sentences for defendants convicted of specified drug offenses and who meet the criteria specified in 18 U.S.C. § 3553(f)(1)–(5), and directed the Commission to promulgate guidelines to carry out these purposes. The reduction in §2D1.1 initially was limited to defendants whose offense level was level 26 or greater, see USSG App. C, Amendment 515 (effective November 1, 1995), but was subsequently ex- panded to apply to offenders with an offense level lower than level 26 to address proportional- ity concerns. See USSG App. C, Amendment 624 (effective November 1, 2001). Specifically, the Commission determined that limiting the applicability of the reduction to defendants with an Amendment 764 10 ║ Supplement to Appendix C (November 1, 2024) offense level of level 26 or greater “is inconsistent with the general principles underlying the two-level reduction . . . to provide lesser punishment for first time, nonviolent offenders.” Id. For similar reasons of proportionality, this amendment expands application of the 2-level re- duction to offenses involving list I and list II chemicals sentenced under §2D1.11. List I chem- icals are important to the manufacture of a controlled substance and usually become part of the final product, while list II chemicals are generally used as solvents, catalysts, and reagents. See USSG §2D1.11, comment. (backg’d.). Section 2D1.11 is generally structured to provide base offense levels that are tied to, but less severe than, the base offense levels in §2D1.1 for offenses involving the final product. The Commission determined that adding the 2-level re- duction for meeting the safety valve criteria in §2D1.11 would promote the proportionality the Commission has intended to achieve between §§2D1.1 and 2D1.11. The amendment also adds new commentary relating to the “safety valve” reduction in §2D1.11 that is consistent with the commentary relating to the “safety valve” reduction in §2D1.1. See USSG §2D1.1, comment. (n. 21). The commentary makes clear that the new 2-level reduc- tion in §2D1.11 applies regardless of the offense of conviction, and that the minimum offense level of 17 in subsection (b) of §5C1.2 (Limitation on Applicability of Statutory Minimum Sen- tences in Certain Cases) does not apply. Section 5C1.2(b) provides for an offense level not less than level 17 for defendants who meet the criteria of subdivisions (1) – (5) of section (a) in §5C1.2 and for whom the statutorily required minimum sentence is at least 5 years. See USSG App. C, Amendment 624 (effective November 1, 2001). Since none of the offenses referenced to §2D1.11 carries a statutory mandatory minimum, the minimum offense level of 17 at §5C1.2(b) does not affect application of the new 2-level reduction in §2D1.11. Effective Date: The effective date of this amendment is November 1, 2012. AMENDMENT 764 AMENDMENT: The Commentary to §2L1.2 captioned “Application Notes” is amended in Note 1(B)(vii) by inserting before the period at the end the following: “, but only if the revoca- tion occurred before the defendant was deported or unlawfully remained in the United States”. REASON FOR AMENDMENT: This amendment responds to a circuit conflict over the application of the enhancements found at §2L1.2(b)(1)(A) and (B) to a defendant who was sentenced on two or more occasions for the same drug trafficking conviction (e.g., because of a revocation of probation, parole, or supervised release), such that there was a sentence imposed before the defendant’s deportation, then an additional sentence imposed after the deportation. The amendment resolves the conflict by amending the definition of “sentence imposed” in Applica- tion Note 1(B)(vii) to §2L1.2 (Unlawfully Entering or Remaining in the United States) to state that the length of the sentence imposed includes terms of imprisonment given upon revocation of probation, parole, or supervised release, but “only if the revocation occurred before the de- fendant was deported or unlawfully remained in the United States.” Section 2L1.2(b)(1) generally reflects the Commission’s determination that both the serious- ness and the timing of the prior offense for which the defendant was deported are relevant to assessing the defendant’s culpability for the illegal reentry offense. A defendant who was de- ported after a conviction for a felony drug trafficking offense receives an enhancement under either prong (A) or (B) of subsection (b)(1), depending on the length of the sentence imposed. If the sentence imposed was more than 13 months, the defendant receives a 16-level enhance- ment to the base offense level under prong (A). If the sentence imposed was 13 months or less, the defendant receives a 12-level enhancement under prong (B). However, for defendants Amendment 765 Supplement to Appendix C (November 1, 2024) ║ 11 whose prior convictions are remote in time and thus do not receive criminal history points, these enhancements are reduced to 12 levels and 8 levels, respectively. The majority of circuits that have considered the meaning of “sentence imposed” in this context have held that the later, additional sentence imposed after deportation does not lengthen the sentence imposed for purposes of the subsection (b)(1) enhancement. See United States v. Bustillos-Pena, 612 F.3d 863 (5th Cir. 2010); United States v. Lopez, 634 F.3d 948 (7th Cir. 2011); United States v. Rosales-Garcia, 667 F.3d 1348 (10th Cir. 2012); United States v. Guz- man-Bera, 216 F.3d 1019 (11th Cir. 2000). Under the majority approach, if the sentence im- posed was 13 months or less before the defendant was deported, and was only increased to more than 13 months after the deportation, the defendant is not subject to the enhancement in prong (A) because the “sentence imposed” includes only the sentence imposed before the deportation. Under this approach, such a defendant receives the enhancement in prong (B) instead. The Second Circuit has reached the contrary conclusion, holding that defendants who had their sentences increased to more than 13 months upon revocation after deportation are subject to the enhancement in prong (A) because the “sentence imposed” includes the additional revoca- tion sentence imposed after deportation. See United States v. Compres-Paulino, 393 F.3d 116 (2d Cir. 2004). The amendment adopts the approach taken by the majority of circuits, with the result that the term of imprisonment imposed upon revocation counts toward the calculation of the offense level in §2L1.2 only if it was imposed before the defendant was deported or unlawfully re- mained in the United States. According to public comment and testimony received by the Com- mission, and as courts have observed, the circumstances under which persons are found pre- sent in this country and have their probation, parole, or supervised release revoked for a prior offense vary widely. See Bustillos-Pena, 612 F.3d at 867–68 (describing differences among rev- ocation proceedings). In some jurisdictions, the revocation is typically based on the offender’s illegal return, while in others, the revocation is typically based on the offender’s committing an additional crime. Furthermore, in some cases revocation proceedings commonly occur be- fore the offender is sentenced on the illegal reentry offense, while in other cases the revocation occurs after the federal sentencing. See Rosales-Garcia, 667 F.3d at 1354 (observing that con- sidering post-deportation revocation sentences could result in disparities based on the “hap- penstance” of whether that revocation occurred before or after the prosecution for the illegal reentry offense). Therefore, assessing the seriousness of the prior crime based on the sentence imposed before deportation should result in more consistent application of the enhancements in §2L1.2(b)(1)(A) and (B) and promote uniformity in sentencing. Effective Date: The effective date of this amendment is November 1, 2012. AMENDMENT 765 AMENDMENT: Section 2L2.2 is amended in subsection (b) by adding at the end the following: “(4) (Apply the Greater): (A) If the defendant committed any part of the instant offense to conceal the de- fendant’s membership in, or authority over, a military, paramilitary, or police organization that was involved in a serious human rights offense during the Amendment 765 12 ║ Supplement to Appendix C (November 1, 2024) period in which the defendant was such a member or had such authority, in- crease by 2 levels. If the resulting offense level is less than level 13, increase to level 13. (B) If the defendant committed any part of the instant offense to conceal the de- fendant’s participation in (i) the offense of incitement to genocide, increase by 6 levels; or (ii) any other serious human rights offense, increase by 10 levels. If clause (ii) applies and the resulting offense level is less than level 25, increase to level 25.”. The Commentary to 2L2.2 captioned “Application Notes” is amended by redesignating Notes 4 and 5 as Notes 5 and 6, respectively; and by inserting after Note 3 the following: “4. Application of Subsection (b)(4).—For purposes of subsection (b)(4): ‘Serious human rights offense’ means (A) violations of federal criminal laws relating to genocide, torture, war crimes, and the use or recruitment of child soldiers under sec- tions 1091, 2340, 2340A, 2441, and 2442 of title 18, United States Code, see 28 U.S.C. § 509B(e); and (B) conduct that would have been a violation of any such law if the offense had occurred within the jurisdiction of the United States or if the defendant or the victim had been a national of the United States. ‘The offense of incitement to genocide’ means (A) violations of 18 U.S.C. § 1091(c); and (B) conduct that would have been a violation of such section if the offense had occurred within the jurisdiction of the United States or if the defendant or the victim had been a national of the United States.”. Chapter Three, Part A is amended by adding at the end the following new guideline and ac- companying commentary: “§3A1.5. Serious Human Rights Offense If the defendant was convicted of a serious human rights offense, increase the of- fense level as follows: (a) If the defendant was convicted of an offense under 18 U.S.C. § 1091(c), in- crease by 2 levels. (b) If the defendant was convicted of any other serious human rights offense, increase by 4 levels. If (1) death resulted, and (2) the resulting offense level is less than level 37, increase to level 37. Commentary Application Notes: 1. Definition.—For purposes of this guideline, ‘serious human rights offense’ means vio- lations of federal criminal laws relating to genocide, torture, war crimes, and the use or recruitment of child soldiers under sections 1091, 2340, 2340A, 2441, and 2442 of title 18, United States Code. See 28 U.S.C. § 509B(e). 2. Application of Minimum Offense Level in Subsection (b).—The minimum offense level in subsection (b) is cumulative with any other provision in the guidelines. For example, Amendment 765 Supplement to Appendix C (November 1, 2024) ║ 13 if death resulted and this factor was specifically incorporated into the Chapter Two offense guideline, the minimum offense level in subsection (b) may also apply. Background: This guideline covers a range of conduct considered to be serious human rights offenses, including genocide, war crimes, torture, and the recruitment or use of child soldiers. See generally 28 U.S.C. § 509B(e). Serious human rights offenses generally have a statutory maximum term of imprison- ment of 20 years, but if death resulted, a higher statutory maximum term of imprisonment of any term of years or life applies. See 18 U.S.C. §§ 1091(b), 2340A(a), 2442(b). For the offense of war crimes, a statutory maximum term of imprisonment of any term of years or life always applies. See 18 U.S.C. § 2441(a). For the offense of incitement to genocide, the statutory max- imum term of imprisonment is five years. See 18 U.S.C. § 1091(c).”. Appendix A (Statutory Index) is amended by inserting after the line referenced to 18 U.S.C. § 2425 the following: “18 U.S.C. § 2441 2X5.1”. REASON FOR AMENDMENT: This amendment results from the Commission’s multi-year re- view to ensure that the guidelines provide appropriate guidelines penalties for cases involving human rights violations. This amendment addresses human rights violators in two areas: de- fendants who are convicted of a human rights offense, and defendants who are convicted of immigration or naturalization fraud to conceal the defendant’s involvement, or possible in- volvement, in a human rights offense. Serious Human Rights Offenses First, the amendment addresses defendants whose instant offense of conviction is a “serious human rights offense.” In the Human Rights Enforcement Act of 2009, Pub. L. 111–122 (Dec. 22, 2009), Congress defined “serious human rights offenses” as “violations of Federal criminal laws relating to genocide, torture, war crimes, and the use or recruitment of child soldiers under sections 1091, 2340, 2340A, 2441, and 2442 of title 18, United States Code.” In that legislation, Congress authorized a new section within the Department of Justice “with responsibility for the enforcement of laws against suspected participants in [such] offenses.” That section was established the following year, when the Human Rights and Special Prose- cutions Section was created in the Justice Department’s Criminal Division. Serious human rights offenses generally have a statutory maximum term of imprisonment of 20 years, but if death resulted, a higher statutory maximum term of imprisonment of any term of years or life applies. See 18 U.S.C. §§ 1091(b), 2340A(a), 2442(b). For the offense of war crimes, a statutory maximum term of imprisonment of any term of years or life always applies. See 18 U.S.C. § 2441(a). For the offense of incitement to genocide, the statutory maximum term of imprison- ment is five years. See 18 U.S.C. § 1091(c). Serious human rights offenses can be committed in a variety of ways, including, for example, assault, kidnapping, and murder. As a result, the guidelines generally have addressed these offenses by referencing them to a number of different Chapter Two offense guidelines, such as §§2A1.1 (First Degree Murder), 2A1.2 (Second Degree Murder), 2A2.1 (Assault with Intent to Commit Murder; Attempted Murder), 2A2.2 (Aggravated Assault) and 2A4.1 (Kidnapping, Ab- duction, Unlawful Restraint). In addition, certain of these Chapter Two offense guidelines use as a base offense level the offense level from another guideline applicable to the underlying conduct (e.g., §2H1.1 (Offenses Involving Individual Rights), which is the guideline to which genocide offenses are referenced). The offense of committing a war crime in violation of 18 U.S.C. § 2441, however, has not been referenced to any guideline prior to this amendment. Amendment 765 14 ║ Supplement to Appendix C (November 1, 2024) The amendment amends Appendix A (Statutory Index) to reference these offenses to §2X5.1 (Other Felony Offenses). Section 2X5.1 addresses the variety of ways in which a war crimes offense may be committed by generally directing the court to apply the most analogous offense guideline. The amendment also establishes a new Chapter Three adjustment at §3A1.5 (Serious Human Rights Offense) if the defendant was convicted of a serious human rights offense. The new guideline provides two tiers of adjustments, corresponding to the differing statutory penalties that apply to such offenses. The adjustment generally provides a 4-level increase if the defend- ant was convicted of a serious human rights offense, and a minimum offense level of 37 if death resulted. If the defendant was convicted of an offense under 18 U.S.C. § 1091(c) for inciting genocide, however, the adjustment provides a 2-level increase in light of the lesser statutory maximum penalty such offenses carry compared to the other offenses covered by this adjust- ment. The new Chapter Three adjustment accounts for the particularly egregious nature of serious human rights offenses while generally maintaining the proportionality provided by the various Chapter Two guidelines that cover such offenses. Immigration Fraud Second, the amendment addresses cases in which the offense of conviction is for immigration or naturalization fraud and the defendant committed any part of the instant offense to conceal the defendant’s involvement, or possible involvement, in a serious human rights offense. These offenders are sentenced under §2L2.2 (Fraudulently Acquiring Documents Relating to Natu- ralization, Citizenship, or Legal Resident Status for Own Use; False Personation or Fraudu- lent Marriage by Alien to Evade Immigration Law; Fraudulently Acquiring or Improperly Us- ing a United States Passport). The offenders covered by this amendment fall into two catego- ries. In the first category are defendants who concealed their connection to a military, para- military, or police organization that was involved in a serious human rights offense. In the second category are defendants who concealed having participated in a serious human rights offense. The amendment adds a new specific offense characteristic to §2L2.2 at subsection (b)(4) that contains two subparagraphs. Subparagraph (A) applies if the defendant committed any part of the instant offense to conceal the defendant’s membership in, or authority over, a military, paramilitary, or police organization that was involved in a serious human rights offense during the period in which the defendant was such a member or had such authority, and provides a 2-level increase and a minimum offense level of 13. Subparagraph (B) applies if the defendant committed any part of the instant offense to conceal the defendant’s participation in a serious human rights offense, and provides a 6-level increase if the offense was incitement to genocide, or a 10-level increase and minimum offense level of 25 if the offense was any other serious human rights offense. The amendment also adds an application note defining the terms “seri- ous human rights offense” and “the offense of incitement to genocide.” The new enhancement reflects the impact that such immigration fraud offenses can have on the ability of immigration and naturalization authorities to make fully informed decisions re- garding the defendant’s immigration petition, application or other request and is intended to ensure that the United States is not a safe haven for those who have committed serious human rights offenses. Effective Date: The effective date of this amendment is November 1, 2012. Amendment 766 Supplement to Appendix C (November 1, 2024) ║ 15 AMENDMENT 766 AMENDMENT: The Commentary to §4A1.2 captioned “Application Notes” is amended in Note 5 by striking “counted. Such offenses are not minor traffic infractions within the meaning of §4A1.2(c).” and inserting “always counted, without regard to how the offense is classified. Par- agraphs (1) and (2) of §4A1.2(c) do not apply.”. REASON FOR AMENDMENT: This amendment resolves differences among circuits regarding when prior sentences for the misdemeanor offenses of driving while intoxicated and driving under the influence (and any similar offenses by whatever name they are known) are counted toward the defendant’s criminal history score. Convictions for driving while intoxicated and similar offenses encompass a range of offense conduct. For example, convictions for driving while intoxicated and similar offenses can be classified as anything from traffic infractions to misdemeanors and felonies, and they are sub- ject to a broad spectrum of penalties (ranging from a fine to years in custody for habitual of- fenders). When the prior offense is a felony, the sentence clearly counts toward the defendant’s criminal history score because “[s]entences for all felony offenses are counted.” See subsec- tion (c) of §4A1.2 (Definitions and Instructions for Computing Criminal History). However, when the prior sentence is for a misdemeanor or petty offense, circuits have taken different approaches, in part because of language added to §4A1.2(c)(1). See USSG App. C, Amend- ment 352 (effective November 1, 1990) (adding “careless or reckless driving” to the offenses listed in §4A1.2(c)(1)). When the prior sentence is a misdemeanor or petty offense, §4A1.2(c) specifies that the offense is counted, but with two exceptions, limited to cases in which the prior offense is on (or similar to an offense that is on) either of two lists. On the first list are offenses from “careless or reck- less driving” to “trespassing.” In such a case, the sentence is counted only if (A) the sentence was a term of probation of more than one year or a term of imprisonment of at least 30 days, or (B) the prior offense was similar to the instant offense. See §4A1.2(c)(1). On the second list are offenses from “fish and game violations” to “vagrancy.” In such a case, the sentence is never counted. See §4A1.2(c)(2). Most circuits have held that driving while intoxicated convictions, including misdemeanors and petty offenses, always count toward the criminal history score, without exception, even if the offense met the criteria for either of the two lists. These circuits have relied on Application Note 5 to §4A1.2, which has provided: Sentences for Driving While Intoxicated or Under the Influence.—Convictions for driving while intoxicated or under the influence (and similar offenses by whatever name they are known) are counted. Such offenses are not minor traf- fic infractions within the meaning of §4A1.2(c). See United States v. Pando, 545 F.3d 682, 683–85 (8th Cir. 2008) (holding that a conviction for driving while ability impaired was properly included in defendant’s criminal history, and re- jecting defendant’s argument that his offense was similar to careless or reckless driving); United States v. Thornton, 444 F.3d 1163, 1165–67 (9th Cir. 2006) (holding that driving with high blood alcohol level was properly included in defendant’s criminal history, and rejecting defendant’s argument that his conviction was “similar” to minor traffic infraction or public intoxication). See also United States v. LeBlanc, 45 F.3d 192, 195 (7th Cir. 1995) (“[A]pplication note [5] reflects the Sentencing Commission’s conclusion ‘that driving while intoxicated of- fenses are of sufficient gravity to merit inclusion in the defendant’s criminal history, however they might be classified under state law.’ ”); United States v. Deigert, 916 F.2d 916, 918 Amendment 767 16 ║ Supplement to Appendix C (November 1, 2024) (4th Cir. 1990) (holding that defendant’s alcohol-related traffic offenses are counted under Ap- plication Note 5). The Second Circuit took a different approach in United States v. Potes-Castillo, 638 F.3d 106 (2d Cir. 2011), holding that Application Note 5 could be read either (1) to “mean that, like felonies, driving while ability impaired sentences are always counted, without possibility of exception” or (2) “as setting forth the direction that driving while ability impaired sentences must not be treated as minor traffic infractions or local ordinance violations and excluded un- der section 4A1.2(c)(2).” Id. at 110–11. The Second Circuit adopted the second reading and, accordingly, held that a prior sentence for driving while ability impaired “should be treated like any other misdemeanor or petty offense, except that they cannot be exempted under sec- tion 4A1.2(c)(2).” Id. at 113. According to the Second Circuit, such a sentence can qualify for an exception, and therefore not be counted, under the first list (e.g., if it was similar to “careless or reckless driving” and the other criteria for a first-list exception were met). The amendment resolves the issue by amending Application Note 5 to clarify that convictions for driving while intoxicated and similar offenses are always counted, without regard to how the offenses are classified. Further, the amendment states plainly that paragraphs (1) and (2) of §4A1.2(c) do not apply. This amendment reflects the Commission’s view that convictions for driving while intoxicated and other similar offenses are sufficiently serious to always count toward a defendant’s crimi- nal history score. The amendment clarifies the Commission’s intent and should result in more consistent calculation of criminal history scores among the circuits. Effective Date: The effective date of this amendment is November 1, 2012. AMENDMENT 767 AMENDMENT: Section 5G1.2 is amended in subsection (b) by striking “Except as otherwise required by law (see §5G1.1(a), (b)), the sentence imposed on each other count shall be the total punishment as determined in accordance with Part D of Chapter Three, and Part C of this Chapter.” and inserting “For all counts not covered by subsection (a), the court shall determine the total punishment and shall impose that total punishment on each such count, except to the extent otherwise required by law.”. The Commentary to §5G1.2 captioned “Application Notes” is amended in Note 1, in the first paragraph, by inserting before the period at the end of the first sentence the following: “and determining the defendant’s guideline range on the Sentencing Table in Chapter Five, Part A (Sentencing Table)”; and after the first paragraph, by inserting the following new paragraph: “Note that the defendant’s guideline range on the Sentencing Table may be affected or re- stricted by a statutorily authorized maximum sentence or a statutorily required minimum sentence not only in a single-count case, see §5G1.1 (Sentencing on a Single Count of Convic- tion), but also in a multiple-count case. See Note 3, below.”; and by redesignating Note 3 as Note 4 and inserting after Note 2 the following: Amendment 767 Supplement to Appendix C (November 1, 2024) ║ 17 “3. Application of Subsection (b).— (A) In General.—Subsection (b) provides that, for all counts not covered by subsec- tion (a), the court shall determine the total punishment (i.e., the combined length of the sentences to be imposed) and shall impose that total punishment on each such count, except to the extent otherwise required by law (such as where a statutorily required minimum sentence or a statutorily authorized maximum sentence otherwise requires). (B) Effect on Guidelines Range of Mandatory Minimum or Statutory Maximum.— The defendant’s guideline range on the Sentencing Table may be affected or restricted by a statutorily authorized maximum sentence or a statutorily re- quired minimum sentence not only in a single-count case, see §5G1.1, but also in a multiple-count case. In particular, where a statutorily required minimum sentence on any count is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence on that count shall be the guideline sentence on all counts. See §5G1.1(b). Similarly, where a statutorily required minimum sentence on any count is greater than the minimum of the applicable guideline range, the guideline range for all counts is restricted by that statutorily re- quired minimum sentence. See §5G1.1(c)(2) and accompanying Commentary. However, where a statutorily authorized maximum sentence on a particular count is less than the minimum of the applicable guideline range, the sentence imposed on that count shall not be greater than the statutorily authorized max- imum sentence on that count. See §5G1.1(a). (C) Examples.—The following examples illustrate how subsection (b) applies, and how the restrictions in subparagraph (B) operate, when a statutorily required minimum sentence is involved. Defendant A and Defendant B are each convicted of the same four counts. Counts 1, 3, and 4 have statutory maximums of 10 years, 20 years, and 2 years, respectively. Count 2 has a statutory maximum of 30 years and a mandatory minimum of 10 years. For Defendant A, the court determines that the final offense level is 19 and the defendant is in Criminal History Category I, which yields a guideline range on the Sentencing Table of 30 to 37 months. Because of the 10-year mandatory minimum on Count 2, however, Defendant A’s guideline sentence is 120 months. See subparagraph (B), above. After considering that guideline sentence, the court determines that the appropriate ‘total punishment’ to be imposed on Defendant A is 120 months. Therefore, subsection (b) requires that the total punishment of 120 months be imposed on each of Counts 1, 2, and 3. The sentence imposed on Count 4 is limited to 24 months, because a statutory maximum of 2 years applies to that particular count. For Defendant B, in contrast, the court determines that the final offense level is 30 and the defendant is in Criminal History Category II, which yields a guideline range on the Sentencing Table of 108 to 135 months. Because of the 10-year mandatory minimum on Count 2, however, Defendant B’s guideline range is restricted to 120 to 135 months. See subparagraph (B), above. After Amendment 767 18 ║ Supplement to Appendix C (November 1, 2024) considering that restricted guideline range, the court determines that the ap- propriate ‘total punishment’ to be imposed on Defendant B is 130 months. Therefore, subsection (b) requires that the total punishment of 130 months be imposed on each of Counts 2 and 3. The sentences imposed on Counts 1 and 4 are limited to 120 months (10 years) and 24 months (2 years), respectively, because of the applicable statutory maximums. (D) Special Rule on Resentencing.—In a case in which (i) the defendant’s guideline range on the Sentencing Table was affected or restricted by a statutorily re- quired minimum sentence (as described in subparagraph (B)), (ii) the court is resentencing the defendant, and (iii) the statutorily required minimum sen- tence no longer applies, the defendant’s guideline range for purposes of the remaining counts shall be redetermined without regard to the previous effect or restriction of the statutorily required minimum sentence.”. REASON FOR AMENDMENT: This amendment responds to an application issue regarding the applicable guideline range in a case in which the defendant is sentenced on multiple counts of conviction, at least one of which involves a mandatory minimum sentence that is greater than the minimum of the otherwise applicable guideline range. The issue arises under §5G1.2 (Sen- tencing on Multiple Counts of Conviction) when at least one count in a multiple-count case involves a mandatory minimum sentence that affects the otherwise applicable guideline range. In such cases, circuits differ over whether the guideline range is affected only for the count involving the mandatory minimum or for all counts in the case. The Fifth Circuit has held that, in such a case, the effect on the guideline range applies to all counts in the case. See United States v. Salter, 241 F.3d 392, 395–96 (5th Cir. 2001). In that case, the guideline range on the Sentencing Table was 87 to 108 months, but one of the three counts carried a mandatory minimum sentence of 10 years (120 months), which resulted in a guideline sentence of 120 months. The Fifth Circuit instructed the district court that the ap- propriate guideline sentence was 120 months on each of the three counts. The Ninth Circuit took a different approach in United States v. Evans-Martinez, 611 F.3d 635 (9th Cir. 2010), holding that, in such a case, “a mandatory minimum sentence becomes the starting point for any count that carries a mandatory minimum sentence higher than what would otherwise be the Guidelines sentencing range,” but “[a]ll other counts . . . are sentenced based on the Guidelines sentencing range, regardless [of] the mandatory minimum sentences that apply to other counts.” See id. at 637. The Ninth Circuit stated that it would be more “logical” to follow the Fifth Circuit’s approach but “such logic is overcome by the precise lan- guage of the Sentencing Guidelines.” See id. The District of Columbia Circuit appears to follow an approach similar to the Ninth Circuit. See United States v. Kennedy, 133 F.3d 53, 60–61 (D.C. Cir. 1998) (one of two counts carried a mandatory sentence of life imprisonment; district court treated life imprisonment as the guide- lines sentence for both counts; Court of Appeals reversed, holding that the appropriate guide- lines range for the other count was 262 to 327 months). The amendment adopts the approach followed by the Fifth Circuit and makes three changes to §5G1.2. First, it amends §5G1.2(b) to clarify that the court is to determine the total punish- ment and impose that total punishment on each count, except to the extent otherwise required by law. Second, it amends the Commentary to clarify that the defendant’s guideline range in a multi- ple-count case may be restricted by a mandatory minimum penalty or statutory maximum penalty (i.e., a mandatory minimum may increase the bottom of the otherwise applicable Amendment 768 Supplement to Appendix C (November 1, 2024) ║ 19 guideline range and a statutory maximum may decrease the top of the otherwise applicable guideline range) in a manner similar to how the guideline range in a single-count case may be restricted by a minimum or maximum penalty under §5G1.1 (Sentencing on a Single Count of Conviction). Specifically, it clarifies that when any count involves a mandatory minimum that restricts the defendant’s guideline range, the guideline range is restricted as to all counts. It also provides examples of how these restrictions operate. Third, it amends the commentary to clarify that in a case in which (1) a defendant’s guideline range was affected or restricted by a mandatory minimum penalty, (2) the court is resentenc- ing the defendant, and (3) the mandatory minimum sentence no longer applies, the court shall redetermine the defendant’s guideline range for purposes of the remaining counts without re- gard to the mandatory minimum penalty. These changes resolve the application issue by clarifying the manner in which the Commission intended this guideline to operate, and by providing examples similar to those used in training probation officers and judges. When there is only one count, the guidelines provide a single guideline range, and that range may be restricted if a mandatory minimum is involved, as described in §5G1.1 (Sentencing on a Single Count of Conviction). When there is more than one count, the guidelines also provide a single guideline range, and that range also may be restricted if a mandatory minimum is involved. These changes provide clarity and consistency for cases in which a mandatory minimum is present and are intended to ensure that sentencing courts resolve multiple-count cases in a straightforward, logical manner, with a single guide- line range, a single set of findings and reasons, and a single set of departure and variance considerations. Effective Date: The effective date of this amendment is November 1, 2012. AMENDMENT 768 AMENDMENT: Chapter Five, Part K, Subpart 2 is amended by striking §5K2.19 and its accom- panying commentary as follows: “§5K2.19. Post-Sentencing Rehabilitative Efforts (Policy Statement) Post-sentencing rehabilitative efforts, even if exceptional, undertaken by a de- fendant after imposition of a term of imprisonment for the instant offense are not an appropriate basis for a downward departure when resentencing the de- fendant for that offense. (Such efforts may provide a basis for early termination of supervised release under 18 U.S.C. § 3583(e)(1).) Commentary Background: The Commission has determined that post-sentencing rehabilitative measures should not provide a basis for downward departure when resentencing a defendant initially sentenced to a term of imprisonment because such a departure would (1) be inconsistent with the policies established by Congress under 18 U.S.C. § 3624(b) and other statutory provisions for reducing the time to be served by an imprisoned person; and (2) inequitably benefit only those who gain the opportunity to be resentenced de novo.”. REASON FOR AMENDMENT: The Commission’s policy statement at §5K2.19 (Post-Sentencing Rehabilitative Efforts) (Policy Statement) prohibits the consideration of post-sentencing reha- Amendment 769 20 ║ Supplement to Appendix C (November 1, 2024) bilitative efforts as a basis for downward departure when resentencing a defendant. Sec- tion 5K2.19 was promulgated in 2000 in response to a circuit conflict regarding whether sen- tencing courts may consider such rehabilitative efforts while in prison or on probation as a basis for downward departure at resentencing following an appeal. See USSG App. C, Amend- ment 602 (effective November 1, 2000). This amendment repeals §5K2.19. The amendment responds to the Supreme Court’s decision in Pepper v. United States, 131 S. Ct. 1229 (2011), which, in part relying on 18 U.S.C. § 3661, held among other things that “when a defendant’s sentence has been set aside on appeal, a district court at resentencing may consider evidence of the defendant’s postsentencing rehabilitation.” The amendment repeals the policy statement in light of the Pepper decision. Effective Date: The effective date of this amendment is November 1, 2012. AMENDMENT 769 AMENDMENT: Section 2P1.2 is amended in subsection (a)(3) by inserting after “currency,” the following: “a mobile phone or similar device,”. The Commentary to §2P1.2 captioned “Application Notes” is amended by redesignating Notes 1 and 2 as Notes 2 and 3, respectively, and by inserting at the beginning the following: “1. In this guideline, the term ‘mobile phone or similar device’ means a phone or other device as described in 18 U.S.C. § 1791(d)(1)(F).”. The Commentary to §2T2.1 captioned “Statutory Provisions” is amended by inserting “15 U.S.C. § 377,” before “26 U.S.C.”. The Commentary to §2T2.2 captioned “Statutory Provisions” is amended by inserting “15 U.S.C. § 377,” before “26 U.S.C.”. Appendix A (Statutory Index) is amended by inserting after the line referenced to 15 U.S.C. § 158 the following: “15 U.S.C. § 377 2T2.1, 2T2.2”; by inserting after the line referenced to 18 U.S.C. § 43 the following: “18 U.S.C. § 48 2G3.1”; by inserting after the line referenced to 18 U.S.C. § 1153 the following: “18 U.S.C. § 1158 2B1.1, 2B5.3 18 U.S.C. § 1159 2B1.1”; by inserting after the line referenced to 18 U.S.C. § 1716D the following: “18 U.S.C. § 1716E 2T2.2”; and by striking the lines referenced to 41 U.S.C. § 53, 54, and 423(e) as follows: “41 U.S.C. § 53 2B4.1 Amendment 769 Supplement to Appendix C (November 1, 2024) ║ 21 41 U.S.C. § 54 2B4.1 41 U.S.C. § 423(e) 2B1.1, 2C1.1”; and by inserting the following: “41 U.S.C. § 2102 2B1.1, 2C1.1 41 U.S.C. § 2105 2B1.1, 2C1.1 41 U.S.C. § 8702 2B4.1 41 U.S.C. § 8707 2B4.1”. REASON FOR AMENDMENT: This amendment responds to miscellaneous issues arising from recently enacted legislation. Cell Phone Contraband Act of 2010 First, the amendment responds to the Cell Phone Contraband Act of 2010, Pub. L. 111–225 (enacted August 10, 2010), which amended 18 U.S.C. § 1791 (Providing or possessing contra- band in prison) to make it a class A misdemeanor to provide a mobile phone or similar device to an inmate, or for an inmate to possess a mobile phone or similar device. Offenses under section 1791 are referenced in Appendix A (Statutory Index) to §2P1.2 (Providing or Possessing Contraband in Prison). The penalty structure of section 1791 is based on the type of contraband involved, and the other class A misdemeanors in section 1791 receive a base offense level of 6 in §2P1.2. Under the amendment, the class A misdemeanor in section 1791 that applies when the contraband is a cell phone will also receive a base offense level of 6 in §2P1.2. This change maintains the relationship between the penalty structures of the statute and the guideline. Prevent All Cigarette Trafficking Act of 2009 Second, the amendment responds to the Prevent All Cigarette Trafficking Act of 2009 (PACT Act), Pub. L. 111–154 (enacted March 31, 2010). The PACT Act made a series of revisions to the Jenkins Act, 15 U.S.C. § 375 et seq., which is one of several laws governing the sale, ship- ment and taxation of cigarettes and smokeless tobacco. The PACT Act raised the criminal penalty at 15 U.S.C. § 377 for a knowing violation of the Jenkins Act from a misdemeanor to a felony with a statutory maximum term of imprisonment of 3 years. The amendment amends Appendix A (Statutory Index) to reference section 377 offenses to §2T2.1 (Non-Payment of Taxes) and §2T2.2 (Regulatory Offenses). These two guide- lines are the most analogous guidelines for a section 377 offense because the offense may in- volve either non-payment of taxes or regulatory offenses. Accordingly, the amendment also amends the Commentary to §§2T2.1 and 2T2.2 to add section 377 to their lists of statutory provisions. These lists indicate that §2T2.1 applies if the conduct constitutes non-payment, evasion, or attempted evasion of taxes, and §2T2.2 applies if the conduct is tantamount to a record-keeping violation rather than an effort to evade payment of taxes. The PACT Act also created a new class A misdemeanor at 18 U.S.C. § 1716E, prohibiting the knowing shipment of cigarettes and smokeless tobacco through the United States mail. The amendment amends Appendix A (Statutory Index) to reference section 1716E offenses to §2T2.2. Section 2T2.2 is the most analogous guideline because offenses under section 1716E are regulatory offenses. Amendment 769 22 ║ Supplement to Appendix C (November 1, 2024) Animal Crush Video Prohibition Act of 2010 Third, the amendment responds to the Animal Crush Video Prohibition Act of 2010, Pub. L. 111–294 (enacted December 9, 2010), which substantially revised the criminal offense at 18 U.S.C. § 48 (Animal crush videos). Section 48 makes it a crime to create or distribute an “animal crush video,” which is defined by the statute in a manner that requires, among other things, that the depiction be obscene. The maximum term of imprisonment for a section 48 of- fense is 7 years. The amendment amends Appendix A (Statutory Index) to reference section 48 offenses to §2G3.1 (Importing, Mailing, or Transporting Obscene Matter; Transferring Ob- scene Matter to a Minor; Misleading Domain Names). Section 2G3.1 is the most analogous guideline because obscenity is an element of section 48 offenses. Indian Arts and Crafts Amendments Act of 2010 Fourth, the amendment responds to the Indian Arts and Crafts Amendments Act of 2010, Pub. L. 111–211 (enacted July 29, 2010), which amended the criminal offense at 18 U.S.C. § 1159 (Misrepresentation of Indian produced goods and services) to reduce penalties for first offenders when the value of the goods involved is less than $1,000. The maximum term of imprisonment under section 1159 had been 5 years for a first offender and 15 years for a repeat offender. The Act retained this penalty structure, except that the statutory maximum term of imprisonment for a first offender was reduced to 1 year in a case in which the value of the goods involved is less than $1,000. The amendment amends Appendix A (Statutory Index) to reference section 1159 offenses to §2B1.1 (Theft, Property Destruction, and Fraud). Sec- tion 2B1.1 is the most analogous guideline because an offense under section 1159 has elements of fraud and deceit. The amendment also addresses an existing offense, 18 U.S.C. § 1158 (Counterfeiting Indian Arts and Crafts Board trade mark), which makes it a crime to counterfeit or unlawfully affix a Government trademark used or devised by the Indian Arts and Crafts Board or to make any false statement for the purpose of obtaining the use of any such mark. The maximum term of imprisonment under section 1158 is 5 years for a first offender and 15 years for a repeat of- fender. The amendment amends Appendix A (Statutory Index) to reference section 1158 of- fenses to both §§2B1.1 and 2B5.3 (Criminal Infringement of Copyright or Trademark). These two guidelines are the most analogous guidelines because an offense under section 1158 con- tains alternative sets of elements, one of which involves trademark infringement and one of which involves false statements. Public Contracting Offenses Finally, the amendment responds to Public Law 111–350 (enacted January 4, 2011), which enacted certain laws relating to public contracts as a new positive-law title of the Code—ti- tle 41, “Public Contracts.” As part of this codification, two criminal offenses, 41 U.S.C. §§ 53 and 423(a)–(b), and their respective penalty provisions, 41 U.S.C. §§ 54 and 423(e), were given new title 41 section numbers: sections 8702 and 8707 for sections 53 and 54, respectively, and sections 2102 and 2105 for sections 423(a)–(b) and 423(e), respectively. The substantive of- fenses and their related penalties did not change. The amendment makes changes to Appen- dix A (Statutory Index) to reflect the renumbering and includes a reference for the new sec- tion 2102, whose predecessor section 423(a)–(b) was not referenced in Appendix A. The changes are technical. Effective Date: The effective date of this amendment is November 1, 2012. Amendment 770 Supplement to Appendix C (November 1, 2024) ║ 23 AMENDMENT 770 AMENDMENT: The Commentary to §1B1.10 captioned “Application Notes” is amended in Note 4 by striking “Application Note 10 to §2D1.1” and inserting “the Drug Equivalency Tables in the Commentary to §2D1.1 (see §2D1.1, comment. (n.8))”. The Commentary to §2D1.1 captioned “Application Notes” is amended by renumbering Notes 1 through 29 according to the following table: Before Amendment After Amendment 1 1 17 2 13 3 2 4 12 5 5 6 6 7 10 8 11 9 15 10 3 11 18 12 23 13 25 14 26 15 27 16 28 17 19 18(A) 20 18(B) 29 19 21 20 Amendment 770 24 ║ Supplement to Appendix C (November 1, 2024) 24 21 8 22 7 23 22 24 4 25 14 26(A) 16 26(B) 9 26(C); and by rearranging those Notes, as so renumbered, to place them in proper numerical order. The Commentary to §2D1.1 captioned “Application Notes”, as so renumbered and rearranged, is further amended by inserting headings at the beginning of certain notes, as follows (with Notes referred to by their new numbers): Note Heading to Be Inserted at the Beginning 1 “Mixture or Substance”.— 2 “Plant”.— 3 Classification of Controlled Substances.— 4 Applicability to “Counterfeit” Substances.— 5 Determining Drug Types and Drug Quantities.— 7 Multiple Transactions or Multiple Drug Types.— 9 Determining Quantity Based on Doses, Pills, or Capsules.— 10 Determining Quantity of LSD.— 12 Application of Subsection (b)(5).— 18 Application of Subsection (b)(13).— 23 Cases Involving Mandatory Minimum Penalties.— 25 Cases Involving “Small Amount of Marihuana for No Remuneration”.— 26 Departure Considerations.— 26(A) Downward Departure Based on Drug Quantity in Certain Reverse Sting Operations.— 26(B) Upward Departure Based on Drug Quantity.— Amendment 770 Supplement to Appendix C (November 1, 2024) ║ 25 26(C) Upward Departure Based on Unusually High Purity.— The Commentary to §2D1.1 captioned “Application Notes”, as so renumbered and rearranged and amended, is further amended as follows (with Notes referred to by their new numbers): in Note 8(A) by striking “Note 5” and inserting “Note 6”; in Note 15 by redesignating (i), (ii), and (iii) as (A), (B), and (C), respectively; in Note 18(A) by inserting before the period at the end of the heading the following: “(Subsec- tion (b)(13)(A))”; and in Note 18(B) by inserting before the period at the end of the heading the following: “(Subsec- tion (b)(13)(C)B(D))”, by redesignating its component subdivision (A) (beginning “Factors to Consider”) as (i), and that subdivision’s component subdivisions (i) through (iv) as (I) through (IV), respectively, and by redesignating its component subdivision (B) (beginning “Definitions”) as (ii). The Commentary to §2D1.1 captioned “Background” is amended by striking the fifth through eighth undesignated paragraphs as follows: “ The last sentence of subsection (a)(5) implements the directive to the Commission in section 7(1) of Public Law 111–220. Subsection (b)(2) implements the directive to the Commission in section 5 of Public Law 111–220. Subsection (b)(3) is derived from Section 6453 of the Anti-Drug Abuse Act of 1988. Frequently, a term of supervised release to follow imprisonment is required by statute for offenses covered by this guideline. Guidelines for the imposition, duration, and conditions of supervised release are set forth in Chapter Five, Part D (Supervised Release).”; in the paragraph beginning “The dosage weight” by striking “111 S.Ct. 1919” and inserting “500 U.S. 453”; and by inserting before the paragraph beginning “Subsection (b)(11)” the following: “ Frequently, a term of supervised release to follow imprisonment is required by statute for offenses covered by this guideline. Guidelines for the imposition, duration, and conditions of supervised release are set forth in Chapter Five, Part D (Supervised Release). The last sentence of subsection (a)(5) implements the directive to the Commission in section 7(1) of Public Law 111–220. Subsection (b)(2) implements the directive to the Commission in section 5 of Public Law 111–220. Subsection (b)(3) is derived from Section 6453 of the Anti-Drug Abuse Act of 1988.”. The Commentary to §2D1.6 captioned “Application Note” is amended in Note 1 by striking “Note 12” and inserting “Note 5”. Amendment 770 26 ║ Supplement to Appendix C (November 1, 2024) The Commentary to §2D1.11 captioned “Application Notes”, as amended by Amendment 763, is further amended by renumbering Notes 1 through 9 according to the following table: Before Amendment After Amendment 4 1 1 2 5 3 6 4 7 5 8 6 9 7 2 8 3 9; and by rearranging those Notes, as so renumbered, to place them in proper numerical order. The Commentary to §2D1.11 captioned “Application Notes”, as so renumbered and rearranged, is further amended by inserting headings at the beginning of certain notes, as follows (with Notes referred to by their new numbers): Note Heading to Be Inserted at the Beginning 2 Application of Subsection (b)(1).— 3 Application of Subsection (b)(2).— 4 Application of Subsection (b)(3).— 8 Application of Subsection (c)(1).— 9 Offenses Involving Immediate Precursors or Other Controlled Substances Covered Un- der §2D1.1.— The Commentary to §2D1.11 captioned “Application Notes”, as so renumbered and rearranged and amended, is further amended in Note 9 (as so renumbered) by striking “Note 12” and inserting “Note 5”. The Commentary to §5G1.2 captioned “Application Notes”, as amended by Note 767, is further amended by amending Note 1 to read as follows: “1. In General.—This section specifies the procedure for determining the specific sentence to be formally imposed on each count in a multiple-count case. The combined length of the sentences (‘total punishment’) is determined by the court after determining the adjusted combined offense level and the Criminal History Category and determining Amendment 770 Supplement to Appendix C (November 1, 2024) ║ 27 the defendant’s guideline range on the Sentencing Table in Chapter Five, Part A (Sen- tencing Table). Note that the defendant’s guideline range on the Sentencing Table may be affected or restricted by a statutorily authorized maximum sentence or a statutorily required min- imum sentence not only in a single-count case, see §5G1.1 (Sentencing on a Single Count of Conviction), but also in a multiple-count case. See Note 3, below. Except as otherwise required by subsection (e) or any other law, the total punishment is to be imposed on each count and the sentences on all counts are to be imposed to run concurrently to the extent allowed by the statutory maximum sentence of imprison- ment for each count of conviction. This section applies to multiple counts of conviction (A) contained in the same indict- ment or information, or (B) contained in different indictments or informations for which sentences are to be imposed at the same time or in a consolidated proceeding. Usually, at least one of the counts will have a statutory maximum adequate to permit imposition of the total punishment as the sentence on that count. The sentence on each of the other counts will then be set at the lesser of the total punishment and the appli- cable statutory maximum, and be made to run concurrently with all or part of the longest sentence. If no count carries an adequate statutory maximum, consecutive sen- tences are to be imposed to the extent necessary to achieve the total punishment.”. Section 5K2.0 is amended in subsection (d)(1) by striking “the last sentence of 5K2.12 (Coercion and Duress), and 5K2.19 (Post-Sentencing Rehabilitative Efforts)” and inserting “and the last sentence of 5K2.12 (Coercion and Duress)”. REASON FOR AMENDMENT: This amendment makes certain technical and conforming changes to commentary in the Guidelines Manual. First, it reorganizes the commentary to the drug trafficking guideline, §2D1.1 (Unlawful Man- ufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy), so that the order of the application notes better re- flects the order of the guidelines provisions to which they relate. The amendment also makes stylistic changes to the Commentary to §2D1.1, such as by adding headings to certain applica- tion notes. To reflect the renumbering of application notes in §2D1.1, conforming changes are also made to the Commentary to §1B1.10 and §2D1.6. Second, it makes certain clerical and stylistic changes in connection with certain recently promulgated amendments. See 77 Fed. Reg. 28226 (May 11, 2012). The clerical and stylistic changes are as follows: (1) Amendment 763 made revisions to §2D1.11 (Unlawfully Distributing, Importing, Ex- porting or Possessing a Listed Chemical; Attempt or Conspiracy). This amendment reorganizes the commentary to §2D1.11 so that the order of the application notes bet- ter reflects the order of the guidelines provisions to which they relate. The amendment also makes stylistic changes to the Commentary to §2D1.11 by adding headings to cer- tain application notes. (2) Amendment 767 made revisions to §5G1.2 (Sentencing on Multiple Counts of Convic- tion), including a revision to Application Note 1. However, the amendatory instructions published in the Federal Register to implement those revisions included an erroneous instruction. This amendment restates Application Note 1 in its entirety to ensure that Amendment 771 28 ║ Supplement to Appendix C (November 1, 2024) it conforms with the version of Application Note 1 that appears in the unofficial, “reader-friendly” version of Amendment 7 that the Commission made available in May 2012. (3) Amendment 768 repealed the policy statement at §5K2.19 (Post-Sentencing Rehabili- tative Efforts). However, a reference to that policy statement is contained in §5K2.0 (Grounds for Departure). This amendment revises §5K2.0 to reflect the repeal of §5K2.19. Effective Date: The effective date of this amendment is November 1, 2012. AMENDMENT 771 AMENDMENT: Section 2B1.1(b) is amended by striking paragraph (5) as follows: “(5) If the offense involved misappropriation of a trade secret and the defendant knew or intended that the offense would benefit a foreign government, foreign instrumentality, or foreign agent, increase by 2 levels.”; by renumbering paragraphs (6) through (8) as (5) through (7); by renumbering paragraphs (13) through (18) as (14) through (19); by inserting after paragraph (12) the following: “(13) (Apply the greater) If the offense involved misappropriation of a trade secret and the defendant knew or intended— (A) that the trade secret would be transported or transmitted out of the United States, increase by 2 levels; or (B) that the offense would benefit a foreign government, foreign instrumentality, or foreign agent, increase by 4 levels. If subparagraph (B) applies and the resulting offense level is less than level 14, in- crease to level 14.”; and in paragraph (16) (as so renumbered) by striking “(b)(15)(B)” and inserting “(b)(16)(B)”. The Commentary to §2B1.1 captioned “Application Notes” is amended in Note 6 by strik- ing “(b)(7)” both places it appears and inserting “(b)(6)”; in Note 10 by striking “(b)(13)” both places it appears and inserting “(b)(14)”; in Note 11 by striking “(b)(15)(A)” both places it ap- pears and inserting “(b)(16)(A)”; in Note 12 by striking “(b)(15)(B)” and inserting “(b)(16)(B)”; in Note 12(A) by striking “(b)(15)(B)(i)” and inserting “(b)(16)(B)(i)”; in Note 12(B) by striking “(b)(15)(B)(ii)” and inserting “(b)(16)(B)(ii)”; in Note 13 by striking “(b)(17)” both places it ap- pears and inserting “(b)(18)”; in Note 13(B) by striking “(b)(17)(A)(iii)” both places it appears and inserting “(b)(18)(A)(iii)”, and by striking “(b)(15)(B)” both places it appears and inserting “(b)(16)(B)”; in Note 14 by striking “(b)(18)” each place it appears and inserting “(b)(19)”; and in Note 19(B) by striking “(b)(17)(A)(iii)” and inserting “(b)(18)(A)(iii)”. The Commentary to §2B1.1 captioned “Background” is amended by striking “(b)(6)”, “(b)(8)”, “(b)(14)(B)”, “(b)(15)(A)”, “(b)(15)(B)(i)”, “(b)(16)”, “(b)(17)”, and “(b)(17)(B)” and inserting “(b)(5)”, “(b)(7)”, “(b)(15)(B)”, “(b)(16)(A)”, “(b)(16)(B)(i)”, “(b)(17)”, “(b)(18)”, and “(b)(18)(B)”, re- spectively; and by inserting before the paragraph that begins “Subsection (b)(15)(B)” (as so amended) the following: Amendment 771 Supplement to Appendix C (November 1, 2024) ║ 29 “ Subsection (b)(13) implements the directive in section 3 of Public Law 112–269.”. REASON FOR AMENDMENT: This amendment responds to section 3 of the Foreign and Eco- nomic Espionage Penalty Enhancement Act of 2012, Pub. L. 112–269 (enacted January 14, 2013), which contains a directive to the Commission regarding offenses involving stolen trade secrets or economic espionage. Section 3(a) of the Act directs the Commission to “review and, if appropriate, amend” the guide- lines “applicable to persons convicted of offenses relating to the transmission or attempted transmission of a stolen trade secret outside of the United States or economic espionage, in order to reflect the intent of Congress that penalties for such offenses under the Federal sen- tencing guidelines and policy statements appropriately reflect the seriousness of these of- fenses, account for the potential and actual harm caused by these offenses, and provide ade- quate deterrence against such offenses.” Section 3(b) of the Act states that, in carrying out the directive, the Commission shall consider, among other things, whether the guidelines ade- quately address the simple misappropriation of a trade secret; the transmission or attempted transmission of a stolen trade secret outside of the United States; and the transmission or attempted transmission of a stolen trade secret outside of the United States that is committed or attempted to be committed for the benefit of a foreign government, foreign instrumentality, or foreign agent. The offenses described in the directive may be prosecuted under 18 U.S.C. § 1831 (Economic espionage), which requires that the defendant specifically intend or know that the offense “will benefit any foreign government, foreign instrumentality, or foreign agent,” and 18 U.S.C. § 1832 (Theft of trade secrets), which does not require such specific intent or knowledge. The statutory maximum terms of imprisonment are 15 years for a section 1831 offense and 10 years for a section 1832 offense. Both offenses are referenced in Appendix A (Statutory Index) to §2B1.1 (Theft, Property Destruction, and Fraud). In response to the directive, the amendment revises the existing specific offense characteristic at §2B1.1(b)(5), which provides an enhancement of two levels “[i]f the offense involved misap- propriation of a trade secret and the defendant knew or intended that the offense would benefit a foreign government, foreign instrumentality, or foreign agent,” in two ways. First, it broad- ens the scope of the enhancement to provide a 2-level increase for trade secret offenses in which the defendant knew or intended that the trade secret would be transported or transmitted out of the United States. Second, it increases the severity of the enhancement to provide a 4-level enhancement and a minimum offense level of 14 for trade secret offenses in which the defend- ant knew or intended that the offense would benefit a foreign government, foreign instrumen- tality, or foreign agent. The enhancement also is redesignated as subsection (b)(13). In responding to the directive, the Commission consulted with individuals or groups represent- ing law enforcement, owners of trade secrets, victims of economic espionage offenses, the United States Department of Justice, the United States Department of Homeland Security, the United States Department of State, the Office of the United States Trade Representative, the Federal Public and Community Defenders, and standing advisory groups, among others. The Commission also considered relevant data and literature. The Commission received public comment and testimony that the transmission of stolen trade secrets outside of the United States creates significant obstacles to effective investigation and prosecution and causes both increased harm to victims and more general harms to the nation. With respect to the victim, civil remedies may not be readily available or effective, and the transmission of a stolen trade secret outside of the United States substantially increases the risk that the trade secret will be exploited by a foreign competitor. In contrast, the simple Amendment 772 30 ║ Supplement to Appendix C (November 1, 2024) movement of a stolen trade secret within a domestic multinational company (e.g., from a United States office to an overseas office of the same company) may not pose the same risks or harms. More generally, the Commission heard that foreign actors increasingly target United States companies for trade secret theft and that such offenses pose a growing threat to the nation’s global competitiveness, economic growth, and national security. Accordingly, the Com- mission determined that a 2-level enhancement is warranted for cases in which the defendant knew or intended that a stolen trade secret would be transported or transmitted outside of the United States. The Commission also received public comment and testimony that cases involving economic espionage (i.e., trade secret offenses that benefit foreign governments or entities under the substantial control of foreign governments) are particularly serious. In such cases, the United States is unlikely to obtain a foreign government’s cooperation when seeking relief for the victim, and offenders backed by a foreign government likely will have significant financial re- sources to combat civil remedies. In addition, a foreign government’s involvement increases the threat to the nation’s economic and national security. Accordingly, the Commission deter- mined that the existing enhancement for economic espionage should be increased from 2 to 4 levels and that such offenses should be subject to a minimum offense level of 14. This height- ened enhancement is consistent with the higher statutory maximum penalties and fines ap- plicable to such offenses and the Commission’s established treatment of economic espionage as a more serious form of trade secret theft. Consistent with the directive, the Commission also considered whether the guidelines appro- priately account for the simple misappropriation of a trade secret. The Commission determined that such offenses are adequately accounted for by existing provisions in the Guidelines Man- ual, such as the loss table in §2B1.1(b)(1), the sophisticated means enhancement at §2B1.1(b)(10), and the adjustment for abuse of position of trust or use of special skill at §3B1.3. Effective Date: The effective date of this amendment is November 1, 2013. AMENDMENT 772 AMENDMENT: Section 2B1.1 is amended by inserting before paragraph (9) the following new paragraph: “(8) (Apply the greater) If— (A) the offense involved conduct described in 18 U.S.C. § 670, increase by 2 levels; or (B) the offense involved conduct described in 18 U.S.C. § 670, and the defendant was employed by, or was an agent of, an organization in the supply chain for the pre-retail medical product, increase by 4 levels.”; The Commentary to §2B1.1 captioned “Application Notes” is amended in Note 1 by inserting after the paragraph that begins “ ‘Personal information’ means” the following: “ ‘Pre-retail medical product’ has the meaning given that term in 18 U.S.C. § 670(e).”; and by inserting after the paragraph that begins “ ‘Publicly traded company’ means” the following: “ ‘Supply chain’ has the meaning given that term in 18 U.S.C. § 670(e).”; Amendment 772 Supplement to Appendix C (November 1, 2024) ║ 31 in Note 3(F)(i) by striking “Note 9(A)” and inserting “Note 10(A)”; and by renumbering Notes 7 through 19 as 8 through 20; by inserting after Note 6 the following: “7. Application of Subsection (b)(8)(B).—If subsection (b)(8)(B) applies, do not apply an adjustment under §3B1.3 (Abuse of Position of Trust or Use of Special Skill).”; and in Note 20 (as so renumbered) by adding at the end of subparagraph (A)(ii) as the last sentence the following: “Similarly, an upward departure would be warranted in a case involving conduct described in 18 U.S.C. § 670 if the offense resulted in serious bodily injury or death, including serious bodily injury or death resulting from the use of the pre-retail medical product.”. The Commentary to §2B1.1 captioned “Background” is amended by inserting before the para- graph that begins “Subsection (b)(9)(D)” the following: “ Subsection (b)(8) implements the directive to the Commission in section 7 of Public Law 112–186.”. However, if §2B1.1(b) already contains a paragraph (8) because the renumbering of para- graphs by Amendment 771 has not taken effect, renumber the new paragraph inserted into §2B1.1(b) as paragraph (8A) rather than paragraph (8), and revise the Commentary so that the new Note 7 inserted into the Application Notes and the new paragraph inserted into the Background refer to subsection (b)(8A) rather than subsection (b)(8). Appendix A (Statutory Index) is amended by inserting after the line referenced to 18 U.S.C. § 669 the following: “18 U.S.C. § 670 2B1.1”. REASON FOR AMENDMENT: This amendment responds to the Strengthening and Focusing Enforcement to Deter Organized Stealing and Enhance Safety Act of 2012, Pub. L. 112–186 (enacted October 5, 2012) (the “Act”), which addressed various offenses involving “pre-retail medical products,” defined as “a medical product that has not yet been made available for retail purchase by a consumer.” The Act created a new criminal offense at 18 U.S.C. § 670 for theft of pre-retail medical products, increased statutory penalties for certain related offenses when a pre-retail medical product is involved, and contained a directive to the Commission. New Offense at 18 U.S.C. § 670 The new offense at section 670 makes it unlawful for any person in (or using any means or facility of) interstate or foreign commerce to— (1) embezzle, steal, or by fraud or deception obtain, or knowingly and un- lawfully take, carry away, or conceal a pre-retail medical product; (2) knowingly and falsely make, alter, forge, or counterfeit the labeling or documentation (including documentation relating to origination or shipping) of a pre-retail medical product; (3) knowingly possess, transport, or traffic in a pre-retail medical product that was involved in a violation of paragraph (1) or (2); (4) with intent to defraud, buy, or otherwise obtain, a pre-retail medical product that has expired or been stolen; Amendment 772 32 ║ Supplement to Appendix C (November 1, 2024) (5) with intent to defraud, sell, or distribute, a pre-retai